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 ^11^:^1 iLiiTi §11171 iL^i iV:
 
 r[fip 
 
 I^^EGLIGEXCE 
 
 OF 
 
 IMPOSED DUTIES, 
 
 PERSONAL. 
 
 BY 
 
 OHAELE^S A. RAY, LL. D., 
 
 EX-CHIEF JUSTICE OP 
 THE SUPKEME COURT OP INDIANA- 
 
 ROCHESTER, N. Y. 
 
 The Lawyeks' Co-Operative Publishin"g Company. 
 
 1891.
 
 K9I 
 
 Entered according to Act of Congress, in the year eighteen hundred and ninety-one, by 
 
 THE LAWYERS' CO-OPERATIVE PUBLISHING CO., 
 
 In the OflQce of tha Librarian of Congress, at Washington, D. C. 
 
 E. R.ANDREWS, PRINTER, ROCHESTER, N. Y.
 
 DEDIOATIOK 
 
 James S. Frazer and Bexjamix HARRisoisr 
 
 Have united with the author, that thus the survivors, late Justices 
 
 and OflBcer of the Supreme Court of Indiana, privileged 
 
 to have been the official associates and personal 
 
 friends of the late 
 
 JEHU T. ELLIOTT and ROBERT C. GREGORY, Justices, 
 
 AND 
 
 LAZARUS NOBLE, Clerk of the Court, 
 
 May dedicate to them this work as a memorial tribute of veneration 
 
 and affection.
 
 PEEFAOE. 
 
 The law imposes many duties upon the individiial, which he is 
 not conscious of having voluntarily assumed. When one under- 
 takes to act as the agent of another, or takes upon himself the more 
 public occupation of a common carrier, he understands that there 
 are duties attached to these offices — duties toward the principal, 
 or obligations toward the public. But in the exercise of our per- 
 sonal rights, we are not always mindful of the rights of others, 
 which we negligently invade in the enforcement of our own. The 
 reason for the imposition of the particular duty toward another, 
 which may be involved in the exercise of each personal right, and 
 the consequences which follow the negligent discharge, or the entire 
 failure to attempt the performance, of such duty, will not be found 
 in any one division of the law. It would seem, therefore, a con- 
 venience to the legal profession, that the duties which are con- 
 stantly demanding our attention, the law imposing them, and the 
 consequence of their neglect, should be presented together, so far 
 as it can be done in reasonable space. The attempt to do this 
 results in this book. The chapter titles indicate the method 
 adopted, while the section titles specify with still more precision 
 the matter treated. 
 
 EocHESTER, N. Y., July, 1891.
 
 TABLE OF CONTENTS. 
 
 PART I. Land; Duties Respecting and Rights Therein. 
 PART II. Waters; Duties Respecting AND Rights Therein. 
 PART III. Personal Property; Duty of Care in its Con- 
 trol. — Fire. 
 
 PART I. 
 
 LAND ; DUTIES RESPECTING AND RIGHTS THEREIN. 
 
 CHAPTER I. 
 
 ORIGIN AND NATURE OP IMPOSED PERSONAL DUTIES. 
 
 Sec. 1. Imposed at Common Law and by Statute. 
 
 Sec. 2. The Permanence and Purpose of the Common Law. 
 
 Sec. 3. Absolute Duties. 
 
 CHAPTER II. 
 
 NEGLIGENCE IN THE EXERCISE OF RIGHTS. 
 
 Sec. 4. Duties Attendant upon the Possession of Rights and the Ownership 
 of Property. 
 
 a. Nuisances. 
 
 b. Intention to Cause Injury. 
 
 c. Proof of Intention to Injure not Always Required. 
 
 d. Intention Sometimes Essential to be Shown. 
 
 e. Placing Spring Guns or Traps or Keeping a Ferocious Animal 
 
 upon One's Land. 
 
 CHAPTER III. 
 INJURY TO LICENSEE OR INTRUDER ON PREMISES. 
 
 Sec. 5. Duty of Keeping Premises Safe for Those Who Enter on Invitation 
 
 upon One's Land. 
 Sec. 6. Must Avoid Affirmative Negligence toward Licensee. 
 Sec. 7. Actual or Constructive Intent to Injure Intruders must Appear. 
 Sec. 8. Duty of Occupier of Premises Adjoining Street. — Attracting Children 
 
 from the Public Street, or Adjacent thereto, into Danger.
 
 Vm TABLE OF CONTENTS. 
 
 CHAPTER lY. 
 
 NEGLIGENT ACT CONSTITUTING A NUISANCE. 
 
 Sec. 9. Care Required where the Act if Unauthorized would be a Nuisance. 
 Sec. 10. Liability where Duties are Transferred, the Doing of Which Consti- 
 tutes a Nuisance. 
 
 CHAPTEE Y. 
 
 NUISANCES, OWNER OR OCCUPIER; HIGHWAYS. 
 
 Sec. 11. Liability of Owner or Occupier of Premises for Nuisance thereon and 
 for Acts of Negligence. 
 
 a. Owner or Tenant Creating a Nuisance and Demising or Under- 
 
 leasing the Premises. — Use as a Nuisance. 
 
 1. Owner Creating or Purchaser or Devisee Continuing Nui- 
 
 sance. 
 
 2. Nuisance Occurring during Term of Lease.— Covenant to 
 
 Repair. 
 
 b. Higliways. 
 
 c. Encroachments upon Highways. — Nuisances. 
 
 d. Public Nuisances on Highways. 
 
 e. Public Nuisances; Abatement thereof. 
 
 f. Injunction to Restrain Nuisances in Streets. 
 
 CHAPTER Yl. 
 
 INVASION OF EASEMENT IN STREET. 
 
 Sec. 12. Private Right of Action for Injury to Easement in Highway. 
 
 a. Easement of Lot Owner in Street. 
 
 b. Street Railroad. — Grant of Privilege. 
 0. Steam Street Railroad.— Excluded. 
 
 d. Permitted. 
 
 e. Fee of Street on the Public. — Release. 
 
 f. Electric Motors. 
 
 g. Telegraph and Telephone Poles. 
 
 h. Drains and Electric, Gas and Water Conductors. 
 
 CHAPTER YII. 
 
 RIGHTS OF PUBLIC IN HIGHWAY. 
 
 Sec. 13. Negligence Creating Nuisance in Highway. 
 
 a. Permitting Street Obstruction for Building Purposes. 
 
 b. Permitting Use for Business Purposes and Pleasure. 
 
 c. Owner of Property on Street must not Create Nuisance in 
 
 Highway. 
 
 d. Erecting Buildings and Making Them Secure. 
 
 e. Building Rendered In.secure by Act of Stranger. 
 
 f. Snow, Ice or Materia! Falling from Roof. — Repairing Buildings. 
 
 g. Aperture in Sidewalk.
 
 TABLE OF CONTENTS. IX 
 
 CHAPTER VIII. 
 
 IMPERILING SAFETY OF TRAVELERS. 
 
 Sec. 14. Negligence Causing Injury to Traveler. 
 
 a. Excavating in or near Highway. 
 
 b. Falling of Fence or Limbs of Trees. 
 
 c. Private Sewerage. 
 
 d. Liability for Injury to Traveler and Care Required from Him. 
 
 CHAPTER IX. 
 
 WHEN PROOF OF NEGLIGENCE REQUIRED. 
 
 Sec. 15. Injury from Unusual Cause, not in Itself a Nuisance, Requires Proof 
 
 of Negligence also. 
 Sec. 16. The Cause of an Injury may Create a Presumption of Negligence in 
 
 the Person Setting It in Motion. 
 
 CHAPTER X. 
 
 ORIGIN AND DEFINITION OF EASEMENTS AND SERVITUDES. 
 
 Sec. 17. Easements and Servitudes. 
 
 a. Defined. 
 
 b. How Created. 
 
 1. By Express Grant. 
 
 2. By Implied Grant. 
 
 3. By Prescription; Light, Air. 
 
 4. By License; Estoppel. 
 
 5. By Custom. 
 
 CHAPTER XL 
 
 LATERAL SUPPORT TO SOIL AND PARTY-WALL. 
 
 Sec. 18. Reciprocal Easement of Lateral Support. 
 Sec. 19. Party-Wall. — Easement of Support. 
 
 a. Title in Party-Wall and Right to Strengthen and Elevate. — 
 
 Contribution for Repair. 
 
 b. Destruction of Party-Wall. 
 
 c. Covenants Respecting Party-Walls. — Personal Covenants and 
 
 Those Running with the Land. 
 
 d. Liability for Accidental or Negligent Injury in Constructing, 
 
 Elevating or Repairing Party-Wall. 
 
 CHAPTER XII. 
 
 USE AND NEGLIGENCE AS AFFECTING EASEMENTS. 
 
 Sec. 20. Use to Create Prescription. 
 
 Sec. 21. Extent of Presumed Right Limited by User on Which Presumption 
 
 Rests. 
 Sec. 22. Negligence as Affecting Easements. 
 
 a. Negligent Failure to Discover Continuous or Apparent Easement.
 
 TABLE OF CONTENTS. 
 
 b. Negligence in the Use, or in Interrupting the Exercise, of an 
 
 Easement. 
 
 1. In a Way. 
 
 2. In Light. 
 
 3. In Water Naturally or Artificially Flowing.— Harvesting 
 
 Ice. 
 
 c. Identity of Use. 
 
 d. Appropriating for an Easement. 
 
 PART II. 
 
 WATERS; DUTIES RESPECTING AND RIGHTS THEREIN. 
 
 CHAPTER XIII. 
 
 RIGHTS AND WRONGS IN SURFACE WATERS. 
 
 Sec. 23. Surface and Percolating Water and Artificial Drainage. 
 
 Sec. 24. Pollution of Underground Currents, Springs and Streams. 
 
 Sec. 25. Distinction between the Rights in Surface and Subterranean Waters. 
 
 Sec. 26. Duty of Municipal Corporations, as Owners of Streets, Alleys and 
 
 Parks, not to Cast the Filth of Their Sewers upon Other Lands. 
 Sec. 27. Injunctions to Prevent Pollution of Waters. 
 Sec. 28. Right of Land Owner to Control Mere Surface Waters or Superficially 
 
 Percolating Waters. 
 
 CHAPTER XIY. 
 
 CARE OP SURFACE WATER IN CITIES. 
 Sec. 29. Duty of Owner of City Lots Regarding Surface or Percolating Water. 
 
 Sec. 30. Duty of City in Controlling Surface and Percolating Water and in 
 
 Supplying Water Artificially. 
 Sec. 31. Negligence in Adopting Plan, or in Its Execution, or in Care of 
 
 Gutters and Drains. 
 
 CHAPTER XY. 
 
 NEGLIGENCE OF TOWNS AND CITIES IN CONTROL OF SURFACE 
 
 WATER. 
 
 Sec. 32. Under What Circumstances City will be Liable. 
 
 Sec. 33. The Rule of Liability in New England. 
 
 Sec. 34. Limited Liability of Unincorporated Town or Village. 
 
 CHAPTER XYI. 
 
 NAVIGABLE WATERS; NEGLIGENCE IN ADMIRALTY; RIGHTS 
 AND THEIR EXERCISE. 
 
 Sec. 35. Watercourses, Lakes and Ponds. — Easements Therein. 
 Sec. 36. Riparian and Littoral Rights. 
 
 Sec. 37. Rule as to Contributory Negligence in Admiralty Jurisdiction, 
 a. Negligence Defined.
 
 TABLE OF CONTENTS. XI 
 
 b. Slight Negligence. 
 
 c. Ordinary Negligence. 
 
 d. Gross Negligence. 
 
 e. Contributory Negligence and Proximate Cause. 
 
 f. In Admiralty Jurisdiction. 
 
 Sec. 38. Navigable Waters within the Jurisdiction of Admiralty. 
 Sec. 39. Navigable Waters; Tidal Streams. 
 
 CHAPTER XYII. 
 
 TITLE TO AND LIABILITY FOR OBSTRUCTIONS IN WATERS. 
 
 Sec. 40. Non-Tidal Navigable Rivers, 
 
 Sec. 41. Title of the National or State Government in the Seashore and in the 
 Banks and Beds of Tidal Streams. — Title of Riparian Owner. 
 
 CHAPTER XVIII. 
 
 NAVIGABLE WATER FRONT— CONTROL AND CARE THEREOF. 
 
 Sec. 42. Control of Municipal Corporation over Shores and Banks of Navi- 
 gable Waters. — Duty of Care of Structures thereon. 
 Sec. 43. Title to Lands Conveyed along a Water Front. 
 Sec. 44. Alluvion, Accretion and Dereliction. 
 
 CHAPTER XIX. 
 
 FLOATABLE AND NAVIGABLE STREAMS— USES AND ABUSES. 
 
 Sec. 45. Floatable and Private Streams. — Title of Riparian Owner. — Reason- 
 able Use. — Dams and Mills. — Log Driving. 
 
 Sec. 46. Easements in Rivers, Streams and Ponds Acquired by Grant. — Parol 
 License. 
 
 Sec. 47. Where It is Uncertain whether the Grant Limits the Quantity of 
 Water or the Class of Machinery, the Limit will be Applied to the 
 Water. 
 
 Sec. 48. Easement in Flowing Water Acquired by Prescription. 
 
 CHAPTER XX. 
 
 NEGLIGENTLY PERMITTING ESCAPE OR USE OF RUNNING 
 
 WATER. 
 
 Sec. 49. Liability for Injury from Permitting the Escape of Water. 
 Sec. 50. The Right to Divert Water from a Stream. 
 Sec. 51. Riparian Rights in Pacific States. — Diversion. 
 Sec. 52. Use of Waters to Supply Cities. 
 
 CHAPTER XXI. 
 
 REMEDY FOR DIVERSION OR OBSTRUCTION OF WATERCOURSE. 
 
 Sec. 53. Remedy for Diversion of Flowing Water. 
 
 Sec. 54. Obstructions of the Flow of Waters. — Bridges over Flowing Waters. 
 
 Sec. 55. Relief in Case of Obstruction to Flow of Stream. 
 
 a. By Indictment or Information. 
 
 b. Individual Right to Abate. 
 
 c. Private Right of Action for Obstructing Watercourse. 
 
 d. Jurisdiction of Equity over Obstruction of Flowing Water.
 
 Xll TABLE OF CONTENTS. 
 
 CHAPTER XX IL 
 
 FERRIES— RIGHTS AND LIABILITIES IN. 
 
 Sec. 56. Ferry Franchise. — Origin. 
 Sec. 57. Ferry a Public Highway. — When Exclusive. 
 Sec. 58. Assignment of Ferry License.— Forfeiture, 
 Sec. 59. Ferryman a Common Carrier. — Liability. 
 
 CHAPTER XXIII. 
 
 FISHERIES AND HUNTING PRIVILEGES. 
 
 Sec. 60. Fishing Privileges a Property Right of State Citizenship. 
 
 Sec. 61. Usage as Affecting Fishery Rights. 
 
 Sec. 62. Fishery Rights Common to All or Vested in Individuals. 
 
 Sec. 63. Private Fisheries. 
 
 Sec. 64. Restrictions upon Fishing and Hunting Rights. 
 
 Sec. 65. Game and Forestry Laws. 
 
 Sec. 66. Distinction between Navigable Rivers and Mere Logging Streams as 
 
 Affecting Fishing and Hunting Rights. 
 Sec. 67. Regulation of Fisheries by Statute. 
 Sec. 68. Destruction of Nets Illegally Used. 
 Sec. 69. Oyster Fisheries. 
 
 Sec. 70. Injury to Fishery by Negligent Navigation. 
 Sec. 71. Protection and Propagation of Fish. 
 Sec. 72. Statutes for the Preservation of Game. 
 
 CHAPTER XXIY. 
 
 USE OF RIVERS; MILL OWNERS; BOOM COMPANIES; WHARVES. 
 
 Sec. 73. Upper and Lower Mill Owners. — Negligence. 
 Sec. 74. Floatage of Logs. — Negligence. 
 
 a. Boom Companies. — Duties and Liabilities. 
 
 b. Compensation for Driving Logs. 
 
 c. Intermingling and Confusion of Logs. 
 Sec. 75. Wharfage and Wharves. 
 
 a. Unlawful Interference with Approach to Wharf. 
 
 b. Wharf Rights. — Public and Private Landings. 
 
 c. Liability of Wharf Owner or Occupier. 
 
 d. Wharfage Fees and Charges. 
 
 CHAPTER XXY. 
 
 EXTINGUISHMENT OF EASEMENTS. 
 
 Sec. 76. How Easements are Extinguished. 
 
 a. By Release. 
 
 b. By Merger. — Union of Titles.— Natural, Necessary and Appar- 
 
 ent Easements not Lost. 
 0. Where Usefulness of Easement Ceases. 
 
 d. Exercise of Rights Suspended by Superior Power. 
 
 e. Renunciation or Abandonment by Encroachment on Easement. 
 
 f. Abandonment of Easement a Question of Fact and Intention. 
 
 g. Adverse User to Extinguish Easement. 
 
 h. Extinguishment of Prescriptive Easement. — Admissions.
 
 TABLE OF CONTENTS. Xlll 
 
 PART III. 
 
 PERSONAL PROPERTY, DUTY OF CARE IN ITS CONTROL: FIRE. 
 
 CHAPTER XXYI. 
 
 DOMESTIC ANIMALS. 
 
 Sec. 77. Care Required of Owners of Macliinery. 
 Sec. 78. Duties Imposed upon the Owners of Animals. 
 
 a. At Common Law the Owner must Keep his Cattle on His Own 
 
 Land. — Fences. 
 
 b. Statutes Requiring Land Owner to Fence against Trespassing 
 
 Domestic Animals. 
 0. Fence must not be a Source of Danger to Cattle in Adjoining 
 Field or Highway. 
 
 d. County Commissioners or Local Authorities may be Empowered 
 
 to Authorize Cattle to Run at Large. — Driving off Trespass 
 ing Animals. 
 
 e. Impounding Domestic Animals. 
 
 f. Authority to Impound and Sell Strayed Domestic Animals. 
 
 g. Rights of Owner of Impounded Animals. 
 
 h. Municipal Ordinances Regarding Strayed Domestic Animals. 
 i. Damages^for Trespass of Animals Impounded. 
 
 CHAPTER XXYII. 
 
 NEGLIGENCE IN CONTROL OF DOMESTIC ANIMALS. 
 
 Sec. 79. Liability of Owners of Animals for their Trespass. — Scienter. — 
 
 Accident. 
 Sec. 80. Care of Domestic Animals under Special Circumstances. 
 Sec 81. Horses Exposed in Public Places. 
 
 CHAPTER XXYIII. 
 
 DOGS— LIABILITY OF OWNER. 
 
 Sec. 82. Duties Imposed upon Owners of Dogs. 
 
 a. Freedom of the Street. — Master not Liable for Trespass of Dog 
 
 on Close. 
 
 b. Owner of Vicious Dog. — Ground of Liability. 
 
 c. Necessary Averments. — Proof of Scienter. 
 
 d. Harborer of Dog. — Unlawful Posses.sion of Animal. 
 
 e. Where the Knowledge of Servant will Charge Master. 
 Sec. 83. Protection of Property in Dogs. 
 
 Sec. 84. License or Tax upon Dogs. 
 
 CHAPTER XXIX. 
 
 ANIMALS FER^ NATURE OR WITH CONTAGIOUS DISEASE; 
 
 CRUELTY. 
 
 Sec. 85. Keepers of Animals Ferse Naturie of Vicious Instincts in Places of 
 
 Public Resort Liable for Injury to Others. 
 Sec. 86. Contributory Negligence in Case of Injury from Animals. 
 Sec. 87. Duty of Owner of Animals Suffering from Contagious Disease. — 
 
 Warranty. 
 Sec. 88. Cruelty to Animals.
 
 XIV TABLE OF CONTENTS. 
 
 CHAFTEE XXX. 
 
 NEGLIGENCE IN USE OF FIRE. 
 
 Sec. 89. Duty Imposed upon a Person Using Fire. 
 
 a. Statute of 6 Anne, Chap. 3, Sec. 6, the Law at Present. 
 
 b. Duty to Use Care Proportioned to the Risk Involved. 
 
 c. Duty to Follow Fire on Other Lands to Extinguish It. 
 
 d. Burden of Proof of Negligence. 
 
 e. Rulings in New York and Pennsylvania Courts and Elsewhere. 
 
 f. Liability for Fire Indirectly Extended. 
 
 g. Intervening Cause. — Independent Wrongful Act of a Responsi- 
 
 ble Person. — Natural Consequences. — Proximate Cause, 
 h. Fire Result of One of Two Causes, 
 i. Statutory Provisions against the Kindling of Fires, under 
 
 Certain Circumstances, and Requiring Fire-Escapes to be 
 
 Placed upon Buildings. 
 
 CHAPTER XXXI. 
 
 NEGLIGENCE CONTRIBUTORY TO INJURY SUFFERED FROM 
 
 FIRE. 
 
 Sec. 90. Contributory Negligence of Party Injured by Fire. 
 
 a. Not bound to Anticipate Negligence. 
 
 b. Must not Create Peril nor Neglect Effort to Escape Loss. 
 
 c. Right to Build on One's Own Land. 
 
 d. Not Chargeable on Account of Changed Conditions. 
 
 e. No Recovery where Plaintiff Consents to Increase of Danger. 
 
 f. Special Acts and Conditions Present Questions for the Jury,
 
 TABLE OF CASES. 
 
 [References are specific to both pages and notes.] 
 
 Abbot of Ramsey's Case, Dyer, 
 
 326 {b) 3995 
 
 Abbott v. Kansas City, St. J. «& 
 
 C. B. R. Co. 83 Mo. 271 295' 
 
 p. Mills, 3 Vt. 521 791 
 
 Abranis v. Hempstead Auditors, 
 
 45 Hun, 273 541« 
 
 V. Johnson, 45 Hun, 591 .. 541*^ 
 Ab.sor V. French, 2 Shower, 28 .. 124^ 
 A. 0. Conn. Co. v. Little S. L. 
 Mfg. Co. 74 Wis. 652 
 
 4035. 414', 5502 
 
 Acker V. New Castle, 48 Hun, 312 305^ 
 Ackerman v. Horicon Iron Mfg. 
 
 Co. 16 Wis. 154 476^ 
 
 Ackert v. Lansing, 59 N. Y. 646. 19=* 
 Acquackanonk Water Co. v. Wat- 
 son, 29N. J. Eq. 366-. 453' 
 Acton V. Blundell, 12 Mees. & W. 
 
 324 1483, 2813, 286 
 
 Adams U.Adams, 13 Pick. 384 
 
 603^ 639' 
 
 V. Barney, 25 Vt. 225 157^ 
 
 V. Chicago, B. & N. R. Co. 
 39 Minn. 286, 1 L. R. 
 A. 493, wote.ll*, 81,90',180* 
 V. Emerson, 6 Pick. 57.258^ 265^ 
 V. Fletcher, 17 R. I. — .. 109= 
 V. Frothingham, 3 Mass. 
 
 352, 3 Am. Dec. 151.. 397' 
 
 ». Hall, 2Vt. 9 5948 
 
 V. Harrison, 4 La. Ann. 165 295^ 
 
 V. Pease, 3 Conn. 481 
 
 .377^ 416,513', 530' 
 
 V. Pease, 2 Conn. 481, 483, 
 
 484 501* 
 
 V. Popham, 76 N. Y. 410.. 79' 
 V. Walker, 34 Conn. 466.. 
 
 - 297^ 301 
 
 V. Wiscasset Bank, 1 Me. 
 
 361, 364 3393 
 
 «. Young, 44 Ohio St. 80. 3 
 
 West. Rep. 145 ...654', 6553 
 Adkins v. Atlanta & C. A. L. R. 
 
 Co. 27S. C. 71 655^ 
 
 64 
 
 372» 
 595^ 
 306» 
 
 I Adsit V. Brady, 4 Hill, 630 343- 
 
 ^tna Ins. Co. v. Boon, 95 U. S. 
 
 117, 24 L. ed. 395 .... 658 
 ^tna Mills v. Brookline, 127 
 
 Mass. 69, 71.. 454^ 
 
 V. Waltham, 126 Mass. 423, 
 
 435 454^ 
 
 Agnew V. Corunna, 55 Mich. 428 310* 
 V. Johnson. 17 Pa. 373.... 201* 
 Ahem v. Steele, 115 N. Y. 203, 5 
 
 L. R. A. 449 
 
 55', 56^ 57, 61' 
 
 Aitcheson, The Endless Chain 
 
 Dredge, 40 Fed. Rep. 
 
 253 
 Akers v. George,"6'l''lir. §76 .".'"" 
 Akron v. McComb, 18 Ohio. 229. 
 Alabama, The, 93 U. S. 695, 33 
 
 L. ed.763... 369' » 
 
 Albee v. Huntley, 56 Vt. 457.... 582' 
 Albert «. Bleecker St. R. Co. 2 
 
 Daly, 389 612* 
 
 V. Northern Cent. R. Co, 
 
 98 Pa. 316 648* 
 
 V. State, 66 Md . 335. 6 Cent. 
 
 Rep.447.44',48. 49'. 51', 567'' 
 Albina Ferry Co. v. The Imperi- 
 al, 38 Fed. Rep. 614, 
 
 3L. R. A. 234, Tzote... 
 Albion V. Hetrick, 90 Ind. 546... 
 Albright v. Penn, 14 Tex. 290... 
 Albrittin v. Huntsville, 60 Ala. 
 
 486.. ...342', 
 
 Alderman v. Hastings, 3 Sid. 8.. 498* 
 
 Aldrich v. Drury, 8 R. I. 554 265' 
 
 V. Midland Blast Furnace 
 
 Co. 78 Mo. 559 145* 
 
 V. Tripp, 11 R. L 141 31P 
 
 V. Wright, 53N. H. 404... 
 Aldridgo v. Great Western R 
 
 Co. 3 Man. & G. 515. 
 Aid worth ». Lynn (.Mass.) 10 L. 
 
 R. A. 310 418', 546' 
 
 Alexander v. Dutton, 58 N. H. 
 
 383 635» 
 
 V. Tolleston Club, 110 111. 
 
 65 1598, 243\ 265* 
 
 461' 
 128* 
 488= 
 
 343* 
 
 33* 
 644»
 
 XVI 
 
 TABLE OF CASES. 
 
 Alger v. Lowell, 3 Allen, 402, 405 120 
 Allegheny v. Zininierman, 95 Pa. 
 
 287 142, 468' 
 
 Allen «. Gomme, 11 Ad. & El. 
 
 759 -238-, 577« 
 
 V. Maine Cent. R. Co. 82 
 
 Me. Ill 363^ 
 
 n. Monmouth County, 13 
 
 N. J. Eq. 68 468^ 
 
 1}. Onnond, 8 East, 4 575* 
 
 1). Sadler, 66 Miss. 221 257- 
 
 V. Wiilard, 57 Pa. 374 323- 
 
 V. Wyckoff, 48 N. J. L. 93, 
 
 2 Cent. Rep. 213 542' 
 
 Allison ?>. Little, 85 Ala. 512 269' 
 
 Allison Mfg. Co. v. McCormick, 
 
 n8 Pa. 519, 11 Cent. 
 
 Rep. 396 136^ 
 
 Alpern v. Churchill, 53 Mich. 607, 
 
 614_ 664', 6672 
 
 Althorf V. Wolfe, 22 N. Y. 355, 
 
 366 1075,641* 
 
 v. Wolfe, 22 N. Y. 366, 367 649^ 
 Alton «. Hope, 68 111. 167. . .3045, 322' 
 Altoona v. Latz, 114 Pa. 238, 6 
 
 Cent. Rep. 135 129^ 
 
 Alves V. Henderson, 16 B. Mon. 
 
 152 564' 
 
 America, The, 92 U. S. 432, 23 L. 
 
 ed. 724 369' 
 
 American Express Co. v. People, 
 
 133 111. 649, 9 L. R A. 
 
 138 5432 
 
 American Print Works v. LaAV- 
 
 rence, 21 N. J. L. 248. 647^ 
 r. Lawrence, 21 N. J. L. 
 
 248, 23 N. J. L. 590 .- 6' 
 «. Lawrence, 21 N. J. L. 257 6^ 
 American River Water Co. «. 
 
 Amsden, 6 Cal. 443... 
 
 -- 406^ 408* 
 
 American Teleph. «& Teleg. Co. 
 
 V. Pearce, 71 Md. 535, 
 
 7L. R. A. 200. 979 '0 
 
 Ames V. Shaw, 82 Me. 379 176* ^ 
 
 Amethyst, The, 2 Ware, 28, 2 N. 
 
 Y. Leg. Obs. 312- 135^ 
 
 Araick «. O'Hara, 6 Blackf. 258. 616' 
 Ammant v. Pittsburgh Turnpike 
 
 Co. 13Serg. & R. 210 485^ 
 Amondson t>. Severson, 37 Iowa, 
 
 603, 2452 
 
 Anderson v. Buckton, 1 Strange, 
 
 192 5852, 593^ 
 
 V. Dickie, 1 Robt. 238 110 
 
 •p. Dickie, 26 How. Pr. 105 
 
 44'. 48',52=3 
 
 Anderson v. East, 117 Ind. 126, 2 
 
 L. R. A. 712, note 
 
 27^ 104«, 156', 310^ 
 
 Anderson v. Hamlin, L.R.25 Q. B. 
 
 Div. 221 536« 
 
 V. Henderson, 124 111. 164, 
 
 14 West. Rep. 109.... 
 
 281-, 2953*, 296' 
 
 v. Locke, 64 Miss. 283.593', 599'' 
 V. Rochester, L. & N. F. R. 
 
 Co. 9 How. Pr. 553 .. 
 
 75*, 4753 
 
 V. Smith, 7 111. App. 354.. 628^ 
 13. Wasatch & J. V. R. Co. 
 
 2 Utah, 518 648* 
 
 V Wilmington (Del.) 19 Atl. 
 
 Rep. 509.. 334' 
 
 w.Worley, 104 Ind. 165, 1 
 
 West. Rep. 833 600* 
 
 Andrai v. Hazelline, 58 Wis. 395 
 
 212', 3142 
 
 Aadrews ■!). Lj-ons, 11 Allen, 349 183* 
 Angel V. Pennsylvania R. Co. 38 
 
 N. J. Eq. 58 74' 
 
 Angus V. Radin, 5 N. J. L. 815.. 591^ 
 Annapolis & E. R. Co. •». Gantt, 
 
 39 Md. 115 654-^ 
 
 Anne Arundel County «. Duckett, 
 
 20 Md. 468... 342' 
 
 Anonymous, Cro. Eliz. 10... 641*, 644' 
 Anthony «. Adams, 1 Met. 284 . . 
 
 336', 352* 
 
 ». Lapham, 5 Pick. 175 443* 
 
 Antomarchi's Exr. v. Russell, 63 
 
 Ala 356 219 
 
 Applebee v. Percy, L. R'9" C. P'6'47. 
 
 22 Week. Rep. 704, 43 
 
 L. J. N. S. C. P. 365, 
 
 30 L. T. N. S. 785 
 
 586S, 587', 605«, 620-, 625' 
 Appleton «. FuUerton, 1 Gray, 
 
 186. 265* 
 
 Arabello «. San Antonio & A. P. 
 
 R. Co. (Tex.) 11 S. W. 
 
 Rep. 913.... 1455 
 
 Arbuckle «.Ward, 29 Vt. 43 
 
 581«, 582'2 
 
 Arbenz v. Wheeling »fe H. R. Co. 
 
 33 W.Va. 1, 5L. R. A. 
 
 371 92^ 
 
 Archer w. Bennett, 1 Lev. 131-.- 
 
 174', 418^ 
 
 Arey v. Newton, 148 Mass. 598.. 130' 
 Ariadne, Tlie, 80 U. S. 13 Wall. 
 
 475, 20 L. ed. 542 .... 369' 
 Arkansas Valley L. & C. Co. •». 
 
 Mann, 130 U. S. 69, 32 
 
 L. ed. 854 586'^ 
 
 Armendaiz v. Stillman, 67 Tex. 
 
 458 460' 
 
 Armstrong v. Cooley, 10 111. 509. 644* 
 
 Arnold tJ.^Cornraan, 50 Pa. 361.. 5773« 
 
 V. Foot, 12 Wend. 330 442* «
 
 TABLE OF CASES. 
 
 xvn 
 
 Arnold v. Munday, 6 N. J. L. 174. SOl^ 
 
 V. Norton, 25 Conn. 93 
 
 586«. 617', 620' 
 
 V. Stevens, 24 Pick. 106... 
 
 571', 580'^ 58P 
 
 Arthur v. Cohoes, 56 Hun, 36 ... 102= 
 V. Commercial & R. R. 
 Bank, 9 Smedes & M. 
 
 420.. 4858 
 
 Arundel v. McCuUoch, 10 Mass. 
 
 70 470 
 
 Ash V. People, 11 Mich. 347 152" 
 
 Ashley v. Hart, 147 Mass. 573, 1 
 
 L. R. A. 355 136^ 
 
 V. Port Huron. 35 Mich. 296 
 
 - ..291^ 292^ 311^322^326" 
 V. Port Huron, 35 Mich. 
 
 296. 24 Am. Rep. 552. 304^ 
 
 «.Wolcott, 11 Cush. 192 .. 300^ 
 
 Askew W.Wynne, 7 Jones, L. 22. 560' 
 
 Ashton V. Nolan, 63 Cal. 269 38' 
 
 Atalanta Mills v. Mason, 120 Mass. 
 
 244 5755 
 
 V. Mason, 120 Mass. 251 .. 574^ 
 Atchison v. Challiss, 9 Kan. 603. 330' 
 «. Challiss, 9 Kan. 612.... 332' 
 V. Peterson, 87 U. S. 20 
 Wall. 507, 22 L. ed. 
 
 414. 445\ 446* 
 
 V. Peterson, 87 U. S. 20 
 
 Wall. 510, 22 L.ed. 415 444 
 Atchison St. R. Co. v. Nave, 38 
 
 Kan. 753. 82" 
 
 Atchison, T. & S. F. R. Co. v. 
 
 Bales, 16 Kan. 252.... 654^ 
 
 v. Dennis, 38 Kan. 434 647-' 
 
 V. Hammer, 22 Kan. 763.. 295' 
 Athens Mfg. Co. v. Rucker, 80 
 
 Ga. 291 430^ 435« 
 
 Atkins z). Bordman, 2 Met. 457.. 
 80-, 158' «, 243=, 246, 
 246', 254, 258^ 471^ 577^ 
 V. Bordman, 2 Met. 457, 
 
 467 265" 
 
 V. Bordman, 20 Pick. 291, 
 
 2 Met. 457 577" 
 
 Atkinson v. Goodrich Transp. Co. 
 
 60 Wis. 141. 6542 
 
 V. Mott, 103 Ind. 431, 3 
 
 West. Rep. 307. 5992 
 
 Atkyn v. Wabash R. Co. 41 Fed. 
 
 Rep. 193 363^ 
 
 Atlanta & West Point R. Co. v. 
 
 Hudson, 63 Ga. 679 .. 636^ 
 V. Hudson, 63 Ga. 680.123', 597= 
 Atlanta C. S. Oil Mills v. Coffey, 
 
 80 Ga. 145 19^ 
 
 Atlantic & P. Teles:. Co. v. Chi- 
 cago, R. i. & P. R. Co. 
 6Biss. 158 97^8 
 
 Atlas, The, 93 U. S. 303, 23 L. 
 
 ed. 863 369' 
 
 Atlas Engine Works v. Randall, 
 
 100 Ind. 293 136^ 
 
 Atlee v. Northwestern U. Packet 
 
 Co. 8S U. S. 21 Wall. 
 
 389, 22 L. ed. 619 .... 
 
 359' •-, 369", 387' ^ 390', 461' 
 Atty-Gen. •». Birmingham, 4 Kay 
 
 & .J. 528. 292'. 456-^ 
 
 V. Boston, 123 Mass. 460.. 480 
 V. Boston & L. R. Co. 118 
 
 Mass. 345-349 390' 
 
 9). Boston Wharf Co. 13 
 
 Gray, 553 380', 468- 
 
 V. Burridge, 10 Price. 350. 468- 
 V. Chambers, 27 Eng. L. & 
 
 Eq. 242, 4 DeG. M. & 
 
 G. 206 378« 
 
 V. Cleaver, 18 Ves. Jr. 211 468- 
 V. Cohoes Co. 6 Paige, 133, 
 
 3N. Y. Ch. L.W. 928 468- 
 V. Delaware & B. B. R. Co. 
 
 27 N. J. Eq. 1, 631... 468= 
 V. Evart Booming Co. 34 
 
 Mich. 463 405' 
 
 V. Evart Booming Co. 34 
 
 Mich. 473. 70' 
 
 V. Forbes. 2 Myl. & Cr. 123 469= 
 V. Great Eastern R. Co. 23 
 
 L. T. N. 344 441= 
 
 V. Hunter, 1 Dev. Eq. 12.. 468^ 
 V. Jamaica Pond Aqueduct 
 
 Corp. 133 Mass. 301 .. 458^ 
 V. Johnson, 2 Wils. Ch. 87 463' 
 ©. Leeds Corp. L. R. 5 Ch. 
 
 583. ...326", 327^ 
 
 V. Lonsdale, L. R. 7 Eq. 
 
 377 468=, 469=, 492- 
 
 V. Lletropolitan R. Co. 125 
 
 Mass. 515, 28 Am. Rep. 
 
 204 93=, 248= 
 
 V. Morris & E. R. Co. 19 
 
 N. J. Eq. 386, 575 236^ 
 
 V. New Jersey R. & Transp. 
 
 Co. 3 N. J. Eq. 136.. 468= 
 V. Parmeter, 10 Price, 378, 
 
 411 468= 
 
 V. Paterson & H. R. R. Co. 
 
 9N. J. Eq. 526 468= 
 
 V. Richards, 1 Anstr. 603.. 468= 
 V. Salem, 103 Mass. 138... 468= 
 1). Terry, L. R. 9 Ch.423.. 
 
 260, 46^= 
 
 V. Tomline, L. R. 13 Ch. 
 
 Div. 214.. 468= 
 
 V. Utica Ins. Co. 2 Johns. 
 
 Ch. 371, 383, 1 N. Y. 
 
 Ch. L. ed. 412, 418... 468' 
 D.Williams. 140 Mass. 329. 253 
 
 B
 
 XVlll 
 
 TABLE OF CASES. 
 
 Atty Gen. «.Woods,108 Mass. 436. 
 
 ;374^ 380', 3813, 4051, 4922 
 Atwater v. Bodfish, 11 Gray, 152 51B' 
 V. Canandaiffua, 56 Hun, 
 
 293 r 308, 314 
 
 Atwood V. Partree, 56 Conn. 80, 
 
 6 New Eng. Rep. 465. 469^ 
 Auchmuty 1). Ham, 1 Denio, 495 
 
 5949, 6223,624% 627' 2 5 
 
 Aurora v. Bitner, 100 Ind. 396... 128' 
 V. Colshire, 55 Ind. 484... 329^ 
 
 V. Gillett, 56 111. 132 322' 
 
 V. Love, 93 III. 521 290% 327-^ 
 
 V. Reed, 57 111. 29 292-' 
 
 v. Heed, 57 111. 30 304\ 322' 
 
 Austin ». Carter, 1 Mass. 231 382' 
 
 V. Hudson River R. Co. 25 
 
 K Y. 334 198^ 
 
 V. Miller, 74 N. C. 274 639^ 
 
 V. Ritz, 72 Tex. 391.. .1273, 131^ 
 V. Rutland R. Co. 45 Vt. 215. 512' 
 Austin & N. R. Co. v. Beatty, 73 
 
 Tex. 592 -. 3623 
 
 Averett v. Brady, 20 Ga. 523 480^ 
 
 Avery t\ Empire Woolen Co. 82 
 
 N. Y. 582 46P4 
 
 V. Fox, 1 Abb. U. S. 246.. 377^ 
 V. Maxwell, 4 N. H. 36... 591^ 
 Aver V. Starkey, 30 Conn. 304... 644^ 
 Ay les worth v. Herrington, 17 
 
 Mich. 417 593 
 
 B. 
 
 Babbage v. Powers (N. Y.) 26 N. 
 
 Y. 8. R. 799. 61' 
 
 Babcock ». Buffalo, 1 Sheld. 317, 
 
 56 N. Y. 268 292% 328^ 
 
 V. Herbert, 3 Ala. 392 480" 
 
 Babson v. Tainter, 79 Me. 368, 4 
 
 New Eng. Rep. 661 383=6 8 
 Bacheldcr v. Hea^an, 18 Me. 32. 
 
 1355, 645"*, 648% 649% 664' 
 Bagley ®. Stephens, 78 Ga. 304.. 269' 
 Bagnall v. London & N. W. R. 
 Co. 7 Hurl. & N. 423, 
 affd. in Excb. Ch. 1 
 
 Hurl. &C. 544. 273= 
 
 Bailey v. Dale, 71 Cal. 34 76' 
 
 V. New York, 3 Hill, 531.. 
 
 342', 345', 432'. 439,440' ,440^ 
 r. New York, 3 Hill, 531, 
 
 539 3383 
 
 V. New York, 3 Hill, 531, 2 
 
 Denio, 433 272' 
 
 V. Philadelphia, W. &B. R. 
 
 Co. 4 Harr. (Del.) 389 359^ 
 V. Schnitzius, 45 N. J. Eq. 
 
 178, 11 Cent. Rep. 737 358' 
 
 Bailey v. Schnitzius, 45 N. J. Eq. 
 
 179, 11 Cent. Rep. 737 460* 
 v. Woburn, 126 Mass, 416, 
 
 418 45425- 
 
 Bainbridge v. Sherlock,29 Ind. 364 563. 
 Baird v. Williamson, 15 C. B. N. 
 
 S.376 270% 288-' 
 
 Bajus V. Syracuse, B. & N. Y. R. 
 Co. 103 N. Y. 312, 4 
 Cent. Rep. 518.... 137% 647^ 
 
 Baker v. Bliss, 39 N. Y. 70 242' 
 
 V. Boston, 12 Pick. 184, 196 
 
 ....80%471» 
 
 V. Brown, 55 Tex. 377 
 
 441', 442* 
 
 V. Byrne, 58 Barb. 438 5683 
 
 V. Fehr, 97 Pa. 72.... 136% 142'' 
 
 V. Frick, 45 Md. 337. 245'2 
 
 «. Bobbins, 9 Kan. 303 592'* 
 
 Bakeman v. Talbot, 31 N. Y. 366 
 
 ....243, 265* 
 
 «. Talbot. 31 N. Y. 371... 243* 
 Baldwin v. Calkins, 10 Wend. 167 428'^ 
 V. Calkins, 10 Wend. 169.. 262* 
 1). Casella, L. R. 7 Exch. 325 
 
 625, 625' 
 
 ■0. Ensign, 49 Conn. 117... 70' 
 V. Goodyear, 6 Cow. 536, 
 
 7wtea, 537-539 502* 
 
 V. St. Louis, K. & N. R. 
 
 Co. 68 Iowa, 37 137' 
 
 Ball V. Grand Trunk R Co. 16 
 
 U. C. C. P. 252 647^ 
 
 a. Nye, 99 Mass. 582 
 
 154, 271, 271> 
 
 V. Nye, 99 Mass. 582, 584.. 288* 
 Daniel Bali, The, 77 U. S. 10 Wall. 
 
 557, 19 L. ed.999 37^ 
 
 Bailacorkish S. L. & C. Min. Co. 
 «. Harrison, L. R. 5 P. 
 
 C. 49. 280' 
 
 Ballard ». Ballard vale Co, 5 Gray, 
 
 471 573* 
 
 V. Harrison, 4 Maule & S. 
 
 387 124* 
 
 v. Struckraan, 123 111. 636. 
 
 12 West. Rep. 785.... 427« 
 V. Tomlinson, L. R. 29 Ch. 
 
 Div. 115 7% 8% 278 
 
 Ballou V. Hopkiuton, 4 Grav, 324 456* 
 Baltimore v. Marriott, 9 Md. 160 247^ 
 V. O'Donnell, 53 Md. 110. 37 
 V. Warren Mfg. Co. 59 Md. 
 
 96 8- 
 
 Baltimore & C. V. R. E. Co. v. 
 Duke, 129 Pa. 422.... 
 
 89% 90% 921 
 
 Baltimore «fc L. Turn p. Co. v. 
 Casswell, 66 Md. 419, 
 6 Cent. Rep. 462 127*
 
 TABLE OF CASES, 
 
 XIX 
 
 Baltimore & O. R Co. v. Boteler, 
 
 38Md. 5G8. 118 
 
 V. Chase, 43 3Id. 23..--359^ 397^ 
 T. Noell, 32 Gratt. 394.... 155- 
 V. Rose, 65 iMd. 485, 3 Cent. 
 
 Rep. 724 193, 104^ 
 
 Baltimore & P. R. Co. v. Fifth 
 
 Baptist Church, 108 
 
 U. S. 317, 27 L. ed. 739 
 
 ...10' \ 823, 320', 332% 6643 
 
 t. Reaney, 42 Md. 117... 
 
 .38', 88", m\ 200-' 
 
 •c. Reaney, 42 Md. 117, 130 89' 
 v. Reaney, 42 Md. 117, 131 89' 
 Baltimore Elevator Co. v. Neal, 
 65 Md. 438, 3 Cent. 
 
 Rep. 856 IW 
 
 Bamford v. Turnley, 3 Best & S. 
 
 66 47S« 
 
 Bangor v. Laasil, 51 Me. 521 
 
 ...296«, 299 S 300- 
 
 Bangs«. Parker, 71 Me. 458 576^ 
 
 Bankard v. Houghton, 27 Beav. 
 
 425, 7 Week. Rep. 197 458^ 
 Bank of Hindustan v. Allison, L. 
 
 R. 6C. P. 54 188* 
 
 Banks «. Ogden, 69 U. S. 3 Wall. 
 
 57, 17L. ed.818..397% 399'o 
 Bannon ®. Angier, 2 Allen, 128.. 5^0* 
 Barber v. Abendroth, 102 N. Y. 
 
 406, 3 Cent. Rep. 637.566'^ ^ 
 Barbour v. Ellsworth, 67 Me. 294 335^ 
 Barclay v. Commonwealth, 25 Pa. 
 
 503 287- 
 
 Barclay R. & Coal Co. v. Ingham, 
 
 36 Pa. 194 4043, 4951 
 
 Bardeu ®, Crocker, 10 Pick. 383 
 
 ....531", 5495 
 
 Barker v. Clark, 4 N. H. 380.169", 2363 
 V. Richardson, 4 Barn. & 
 
 Aid. 579... 179 
 
 Barkley v. Tieleke, 3 Mont. 59... 4463 
 V. Wilcox, 86 N. Y. 140,40 
 
 Am. Rep. 519 
 
 1483,2951.2962,297" 
 
 V. Wilcox, 86 N. Y. 140, 
 
 145 2985 
 
 «. Wilcox, 86 N. Y. 144... 358' 
 
 V. Wilcox, 86 N. Y. 148.. 300' 
 
 Barnard v. Lloyd, 85 Cal. 131... 173= 
 
 V. Poor, 21 Pick. 378 
 
 ....64P, 6442, 6641 
 
 V. Poor, 21 Pick. 380. .645% 647^ 
 Barnes v. Chapin, 4 Allen, 444.. 608' 
 V. District of Columbia, 91 
 U. S. 540, 23 L. ed. 
 
 440.... ...3283, 343' 
 
 V. Haynes, 13 Gray, 188. . 188^ 
 ®. Lloyd, 112 Mass. 224.. 
 
 578% 580" 
 
 Barnes v. Lloyd. 112 Mass. 231... 577' 
 V. i\[arshal], 68 Cal. 569... 461- 
 
 i>. Racine, 4 Wis. 454 477-' 
 
 V. Sabron, 10 Nev. 217 445'' 
 
 V. Ward, 9 C. B. 393 
 
 27', 41', 110', 
 
 117, 131', 150*, 3472, 472» 
 Barnett v. Plummer (Pa.) 6 Cent. 
 
 Rep. 650 163^ 
 
 Barney v. Keokuk, 94 U. S. 384, 
 
 24 L. ed. 224 
 
 94', 378', 386% 
 
 3863, 386% 397', 399'% 492-' 
 ». Keokuk, 94 U. S. 336, 24 
 
 L. ed. 227 372'> 
 
 V. Keokuk, 94 U. S. 343, 34 
 
 L. ed. 229.. 377^ 
 
 V. Lowell, 98 Mass. 570- . 
 
 335', 347^ 
 
 V. Lowell, 98 Mass. 570, 
 
 571 - 351' 
 
 Barns v. Wilson, 116 Pa. 308. 8 
 
 Cent. Rep. 450 207^^ 
 
 Barnum v. Terpening, 75 Mich. 
 
 557 6096» 
 
 V. Vandusen, 16 Conn. 300 
 
 586% 594% 623% 633^ 
 
 Barr v. Stevens, 1 Bibb, 393 
 
 136% 475% 4788 
 
 Barre «. New Orleans, 33 La. 
 
 Ann. 613. 397' 
 
 Barre Water Co., Re (Vt.)9 L. R. 
 
 A 195 259'' 
 
 Barrett «. Dolan, 71 Iowa, 94."^! eOO-* 
 «. Maiden & M. R. Co. 3 
 
 Allen, 101 eSl' 
 
 V. New Orleans, 13 La. 
 
 Ann. 105 397' 
 
 V. Third Ave. R. Co. 45 
 
 N. Y. 638 .. 660=* 
 
 Barrington «. Turner, 3 Lev. 
 
 38 637S 
 
 Barron «. Davis, 4 N. H. 338.. 405' 
 Barrow v. Laundry, 15 La. Ann. 
 
 681 2953 
 
 Barry v. Lowell, 8 Allen, 127.293% 350' 
 
 z). Lowell, 8 Allen, 128 348^ 
 
 V. New York C. & H. R. 
 
 R. Co. 92 N. Y. 390 .. 21> 
 Bartholomew v. Poughkeepsie «& 
 H. Ferry Co. (Sup. 
 Ct.) 28 N. Y. S. R. 
 
 388 489* 
 
 Bartle v. Des Moines, 38 Iowa, 
 
 414 806'' 
 
 Bartlett v. Baker, 3 Hurl. & C. 
 
 153 566« 
 
 V. Bangor, 67 Me. 460 161 ■' 
 
 V. Crozier, 17 Johns. 439, 
 
 452-455 3393
 
 XX 
 
 TABLE OF CASKS. 
 
 Bartlett v. Crozier, 17 Johns. 439, 
 
 454 .-.. 338' 
 
 «. New York & S. B. F. & 
 S. Transp. Co., 25 
 
 Jones. &S. 348 489' « ' 
 
 Barton v. Home Ins. Co. 42 Mo. 
 
 156 659> 
 
 V. Si. Louis & I. M. R. Co. 
 
 52 Mo. 25a 612' 
 
 V. Syracuse, 36 N. Y. 54.. 
 
 292^ 311^ 316, 342' 
 
 •y. Syracuse, 3G N. Y. 58-. 252^ 
 «. Syracuse. 36 N. Y. 54, 37 
 
 Barb. 292. 
 
 326^ 3383, 32925, 33037^ 33115 
 «. Syracuse, 37 Barb. 292. 
 
 3263, 3422 
 
 V. Union Cattle Co. (Neb.) 
 
 7L. R. A. 457 8^ 
 
 Bass V. Chicago, B. & Q. R. Co. 
 
 28 111. 9 646^ 
 
 V. Fontleroy, 11 Tex. 698. 480^ 
 Bassett v. Salisbury Mfg. Co. 43 
 
 N. H.573. 280' 
 
 V. Salisbury Mfg. Co. 43 
 
 N. H. 569 299' 
 
 Bastable v. Syracuse, 8 Hun, 587 
 
 292^ 311* 
 
 V. Syracuse, 8 Hun, 587, 72 
 
 N. Y. 64 
 
 304^ 320^ 3253, 326*5, 328^ 
 V. Syracuse, 72 N. Y. 64.. 290' 
 Batchelder v. Hibbard, 58 N. H. 
 
 269 182' 
 
 V. Keniston, 51 N. H. 496. 397^ 
 Bateman v. Bluck, 18 Q. B. 870- . 469' 
 Bates V. Illinois Cent. R. Co. 66 
 U. S. 1 Black, 204, 17 
 
 L. ed. 158 4002 
 
 V. Smith, 100 Mass. 181 
 
 ..- 296*, 3035, 3493 
 
 V. Westborough (Mass.) 7 
 
 L. R. A. 156 
 
 340-, 348, 348' 
 
 Bathurst v. Macpherson, L. R. 4 
 
 App. Cas. 256 292^ 
 
 Baxter v. Winooski Turnp. Co. 
 
 22 Vt. 114 79^ 80-', 471^ 
 
 Bay City Gaslight Co. v. Indus- 
 trial Works, 28 Mich. 
 
 182. 5172 
 
 Baylor v. Decker, 133 Pa. 168. .. 499^ 
 Beach «. Elmira, 22 Hun, 158... 
 
 ..292*5, 2933, 
 
 3045, 311*, 320^ 325', 326* 
 V. Gaylord (Minn.) 45 N. 
 
 W. Rep. 1095.. 2975 
 
 Bealey v. Shaw, 6 East, 208 426 
 
 Beall V. Clore, 6 Bush, 676 427" 
 
 Bean ». Coleman, 44 N.H. 539.1595, 245' 
 
 Bearce v. Fossett, 34 Me. 575 540- 
 
 Beard v. Clarke, 35 Minn. 324... 557' 
 V. Murphy, 37 Vt. 99, 86 
 
 Am. Dec. 693 38', 200-2 
 
 V. Murphy, 37 Vt. 104.295^ 300 
 Beardslee ». Richardson, 11 
 
 Wend. 25 490* 
 
 Beardsley v. Smith, 16 Conn. 368 339' 
 Beatty v. Central Iowa R. Co. 58 
 Iowa, 242, 8 Am. & 
 Eng. R. R. Cas. 210.. 133^ 
 V. Gregory, 17 Iowa, 114- - 182' 
 Beaulieu*. Finglam, Y. B. 2 Hen. 
 
 IV. fol. 18, pi. 6 
 
 2708, 641*, 649=* 
 
 Beavers v. Trimmer, 25 N. J. L. 
 
 97 -- 56' 
 
 Beck V. Carter, 6 Hun, 604, 68 N. 
 
 Y. 284.. 118 
 
 V. Carter, 68 N. Y. 283, 23 
 
 Am. Rep. 175 191 
 
 29\ 54, 73^ 110', 118, 121' 
 V. Carter, 68 N. Y. 292.... 21' 
 
 V. Dyson, 4 Camp. 199 615- 
 
 Beckley v. Learn, 3 Or. 470 480' 
 
 V. Learn, 3 Or. 544 480' 
 
 V. Skroh, 19 Mo. App. 75. 154- 
 Beckman v. Ereamer, 43 111. 447 
 
 5012, 5131 
 
 Beckwith v. Shordike, 4 Burr. 
 
 2092 5915, 615 
 
 Bedell v. Berkey, 74 Mich. 435.. 24^ ^ 
 V. Long Island R. Co. 44 
 
 N. Y. 367-370. 256' 
 
 Bedford, S. O. & B. R. Co. v. 
 
 Rainbolt, 99 Ind. 551. 155* 
 Bedlow «. New York Floating 
 Dry-Dock Co. 44 Hun, 
 378 385* 
 
 Beecherw. Peopl'e'.'sSMich. 289. 577* 
 BelcherSugar Ref Co. v. St Louis 
 Grain Elev. Co. 82 Mo. 
 
 121.. .- 97' 
 
 v. St. Louis Grain Elev. 
 Co. (Mo.) 8 L. R. A. 
 
 801.. 39P 
 
 Belfast, The, 74 U. S. 7 Wall. 
 
 624, 19 L. ed. 266 .... 3715 
 Belknap v. Trimble, 3 Paige, 577, 
 
 3 N. Y. Ch. L. ed. 281 2622 
 
 Bell V. Gough, 23 N. J. L. 624 .. 379' 
 
 V. Leslie, 24 Mo. App. 661. 586^ 
 
 V. McClintock, 9 Watts, 119 433^ 
 
 V. Norfolk Southern R. Co. 
 
 101 N. C. 21 2983 
 
 V. Tweutyman, 1 Q. B. 766 124' 
 
 «. Warden, Willes, 202 189^ 
 
 Bellinger v. New York C. R. Co. 
 
 23 N. Y. 42 110' 
 
 Bellows V. Sackett, 15 Barb. 96.. 9'^
 
 TABLE OF CASES. 
 
 XXI 
 
 Bellows V. Sackett, 15 Barb. 102. 665' 
 Benden v. Nashua, 17 N. H. 477. 305^' 
 Benett v. Costar, 8 Taunt. 183.-. 498''^ 
 Benjamin v. Wheeler, 8 Gray, 409, 
 
 413 12> 
 
 V. Wheeler, 8 Gray, 409, 15 
 
 Gray, 486. 347^ 349^ 
 
 Bennett ®. Boggs, Baldw. 60.379», 495'^ 
 V. Buchan, 76 N. Y. 386.. 634^ 
 V. Contra Costa County, 67 
 
 Cal. 77 341^ 
 
 V. Louisville & N. R. Co. 
 102 U. S. 577, 26 L. ed. 
 
 235. A8\ 19», 20^, 150^ 
 
 V. Whitney, 94 N. Y. 302. 342' '^ 
 
 Benson v. Morrow, 61 Mo. 345 .. 399'" 
 
 V. New York, 10 Barb. 228 486« 
 
 V. New lork, 10 Barb. 228 480'' 
 
 V. Suarez, 29 How. Pr. 512 664' 
 
 V. Suarez, 43 Barb. 408 ... 68' 
 
 Benthal v. Seifert, 77 Ind. 302... 300'^ 
 
 Bentz V. Armstrong, 8 Watts. & 
 
 S. 40 ....2953, 3021 
 
 Berry V. Carle, 8 Me. 269. -37G-^ 
 
 404«, 415, 415', 580'\ 531^ 
 V. Snyder, 3 Bush, 266, 277 3932 
 Bertram v. Curtis, 31 Iowa, 46 . . 209' 
 Besozzi V. Harris, 1 Fost. & F. 92 
 
 ...587', 629 
 
 Besso V. Southworth, 71 Tex. 765 476'^ 
 Beswick v. Cunden, Cro. Eliz. 
 
 402,520 434 
 
 Bethum v. Turner, 1 Me. Ill ... 237^ 
 Bidelman v. State, 110 N. Y. 282, 
 
 18 Cent. Rep. 403 482^ 
 
 Bigelow V. Hartford Bridge Co. 
 
 14 Conn. 565 477^ 
 
 V. Randolph, 14 Gray, 541 
 
 33S^, 3393, 3441 
 
 V. Randolph, 14 Gray, 543 
 
 340', 3444 
 
 V. Reed, 51 Me. 325 611^ 
 
 V. Shaw, 65 Mich. 341, 8 
 
 West. Rep. 781 516 
 
 Biggs V. Farrell, 12 Ired. L. 1 ... 482« 
 Biggs & Clark's Case, 2 Leon. 104 6393 
 Biglow V. Battle, 15 Mass. 813... 428' 
 Big Rapids v. Comstock, 65 Mich. 
 
 78, 8 West. Rep. 136... 7P 
 Bileu V. Paisley. 18 Or. 47, 4 L. 
 
 R. A. 840.. 590', 592'3, 595' 
 
 Bill V. Smith, 89 Conn. 211 612' 
 
 V. Smith, 39 Conn. 212 611^ 
 
 Billings V. Breinig, 45 Mich. 70. . 486 
 Billman v. Indianapolis, C. & L. 
 R. Co. 76 Ind. 166, 40 
 
 Am. Rep, 230 
 
 653, 6042, 6563, 6573 
 
 Bills V. Kinson, 21 N. H. 448.... 602'' 
 Bingham v. Salene, 15 Or. 208 .. 181'' 
 
 Binghampton Bridge, The, 70 U. 
 
 S. 3 Wall. 71,18 L.ed. 
 
 142... 463'^ 
 
 Binks V. South Yorkshire R. & D. 
 
 R. Co. 3 Best & S. 244 117' 
 Bird V. Great Northern R. Co. 28 
 
 L. J. N. S. Exch. 3 .- 146* 
 V. Higginson, 6 Ad. & El. 
 
 824.. 500* 
 
 V. Holbrook. 4 Bing. 628.. 17» 
 V. Smith, 8 Watts, ^84 
 
 1 380*. 480'«s 
 
 Birdseye v. Frost, 34 Barb. 367.. 634* 
 Birge v. Gardiner, 19 Conn. 507.. 
 
 ...597', 669* 
 
 Birkett v. Knickerbocker Ice Co. 
 
 110 N. Y. 507. 28* 
 
 Birmingham Canal Co. v. Lloyd, 
 
 18 Ves. .Jr. 515. 458* 
 
 Bittle V. Stuart, 84 Ark. 224 875« 
 
 Black V. O'Hara, 54 Conn. 17 ... 176» 
 V. Philadelphia&R. R. Co. 
 
 58 Pa. 249 94* 
 
 Blackman c. Simmons, 3 Car. & 
 
 P. 188.. 6O43, 6I935 
 
 Blackwell v. Old Colony R. Co. 
 
 122 Mass. 1 474', 475> 
 
 Blades ». Higgs, 12 C. B. N. S. 
 
 50l, 13 C.B.N. S. 844, 
 
 11 H. L. Cas. 621, 20 
 
 C. B. N. S. 214 543' 
 
 V. Hiffgs, 13 C. B. N. S. 
 
 866 525 
 
 Blaine v. Chambers, 1 Serg. & R. 
 
 169 419* 
 
 V. Ray, 61 Vt. 566. 428' 
 
 Blair v. Forehand, 100 Mass. 136 628'» 
 
 V. Forehand, 100 Mass. 141 627« 
 
 Blake®. Everett, 1 Allen, 248... 234* 
 
 ». Ham, 50 Me. 811 166' 
 
 Blakeley v. LaDuc, 19 Minn. 187 488* 
 Blakely Twp. v. Devine, 36 Minn. 
 
 58 297* 
 
 Blanchard v. Ayer, 148 Mass. 174, 
 
 176 351' 
 
 V. Baker, 8 Me. 253, 23 Am. 
 
 Dec. 504 2872, 425*, 443* 
 
 V. Bridges, 4 Ad. & El. 176 255» 
 Blanchett v. Border City Mfg. 
 
 Co. 148 Mass. 21, 3 
 
 NewEng. Rep. 92 ... 136» 
 Blenkiron v. Great Central Gas 
 
 Co. 8 L. T. N. S. 817 642' 
 
 Blessing v. Blair, 45 Ind. 546 443* 
 
 Bliss «. Greeley, 45 N. Y. 071... 
 
 281, 285' 
 
 V. Johnson, 94 N. Y. 285.. 247* 
 V. Schaub, 48 Barb. 839... 250' 
 Bloch^. Isham, 28 Ind. 37 
 
 2095, 210*, 2203
 
 XXll 
 
 TABLE OF CASES. 
 
 Bloch v. Isham, 28 Ind. 37, 93 Am. 
 
 Dec. 29.J, note. 214^ 
 
 Blodgett V. Boston, 8 Allen, 237. 125i 
 V. Smith, 7 Hurl. & N. 733 584 
 
 Blood V. Bangor, 66 Me. 154 329^ 
 
 V. Nashua & L. R. Co. 2 
 Gray, 137, 61 Am. Dec. 
 
 444. 3553, 405' 
 
 Bloodgood V. Ayers, 37 Hun, 356 454^ 
 V. Ayers, 108 N. Y. 400, 11 
 
 Cent. Rep. 108 16, 276 
 
 Bloomington v. Brokaw, 77 III. 
 
 194 306^ 
 
 V. Perdue, 99 111. 329 31 
 
 Blunt®. Aikin, 15 Wend. 522... 434^ 
 Blyth «. Birmingham "Water- 
 works Co. 11 Exch. 
 
 781 .139", 431^ 
 
 1). BirralnghamWaterworks 
 
 Co. 11 Exch. 781, 784 103'^ 
 V. Birmingham Waterworks 
 
 Co. 11 Exch. 783 36P 
 
 V. Topham, Cro. Jac. 158. 
 
 2V, 117, 1502 
 
 Board of Trade Teleg. Co. v. Bar- 
 nett, 107 111. 507, 47 
 
 Am. Rep. 453 97' 
 
 Boatwright v. Bookman, Rice, L. 
 
 447 499«, 5142 
 
 V. Bookman, Rice, L. 447, 
 
 451 531« 
 
 Bodfish V. Fox, 23 Me. 95.. ISS'' 
 
 Boecher*. Lutz, 13 Daly, 28 628" 
 
 Bogenschutz v. Smith, 84 Ky. 330 145- 
 Bohen v. Waseca, 32 Minn. 176. . 
 
 342', 3432 
 
 Boissonnault v. Oliva, Stuart 
 
 (Low. Can.) 564 405' 
 
 V. Oliva, Stuart (Low. Can.) 
 
 565 3773 
 
 Bolch V. Smith, 7 Hurl. & N. 726 584' 
 
 V. Smith, 7 Hurl. & N. 736 150^ 
 
 V. Smith, 7 Hurl. & N. 741 568^ 
 
 Bombaugh v. Miller, 83 Pa. 203. 580^ 
 
 Bond V. Srnith, 44 Hun, 219 
 
 ..73^ 110', 121'. 122 
 
 v. Smith, 113 N. Y. 378... 122* 
 Bonner v. Welborn, 7 Ga. 311... 70' 
 Boody V. Watson, 64 N. H. 162, 4 
 
 New Eng. Rep. 563 .. 171« 
 Boorman v. Sunnuchs, 42 Wis. 233 399- 
 V. Sunnuchs, 42 Wis. 235.. 3998 
 Booth V. Ratte, L. R. 15 App. Cas. 
 
 188. 559^ 563' 
 
 Boothby v. Androscosgin & K. R. 
 
 Co. 51 Me. 318 ...38', 1982 
 Borden v. Vincent, 24 Pick 301 
 
 75^ 474' 2 
 
 Borden Min. Co. v. Barrv, 17 Md. 
 
 419. 1 566^ 
 
 369* 
 
 35^ 
 
 35^ 
 
 Bordentown, The, 16 Fed. Rep. 
 270 
 
 Bordentown & S. A. Turnp. Co. 
 
 V. Camden & A. R. & 
 
 Transp. Co. 17 N. J. 
 
 L. 314 
 
 Boss v. Litton, 5 Car. & P. 407... 
 Boston V. Gray. 144 Mass. 53, 3 
 
 New Eng. Rep. 698.41\ 62" 
 V. Lecraw, 58 U. S. 17 How. 
 
 426, 15 L. ed. 118 
 
 308', 380«, 382'''*5 6 
 
 V. Lecraw, 58 U. S. 17 How. 
 
 431, 15 L. ed. 121 383' « 
 
 ®. Richardson, 105 Mass. 
 
 351 4933 
 
 V. Richardson, 105 Mass, 
 
 351, 357 560' 
 
 v. Richardson, 105 Mass. 
 
 358.... 380« 
 
 Boston & A. R. Co. v. Briggs, 132 
 
 Mass. 24 5913 
 
 Boston & R. Mill Dam Corp. «. 
 
 Newman, 12 Pick. 467 533' 
 Boston & W. R. Corp. v. Old Col- 
 ony R. Corp. 12 Cush. 
 
 6O0... 
 
 Boston Belting Co. «. Boston, 149 
 
 Mass. 44 
 
 Boston Water Co. v. Boston, 127 
 
 Mass. 374 
 
 Boston Water Power Co. v. Bos- 
 ton & W. R. Corp. 16 
 
 Pick. 512, 525 456^ 
 
 Bottsw. Mo. Pac. R. Co. 11 Mo. 
 
 App. 589 94' 
 
 Boulder v. Niles, 9 Colo. 415 
 
 342', 343' 
 
 Bourke^j. Davis, L. R. 44 Ch. Div. 
 
 110 ....188*5_ 
 
 Bowditch V. Boston, 101 U. S. 16, 
 
 25 L. ed. 980 
 
 Bo wen v. Team, 6 Rich. L. 298.. 
 V. Team, 6 Rich. L. 298, 
 
 305.. 
 
 Bower i'. Peate, L. R. 1 Q. B. Div. 
 
 321.... .38, 154^ 233 
 
 Bowling Green v. Carson, 10 Bush, 
 
 64 152^ 
 
 Bowlsby V. Speer. 31 N. J. L. 351 
 
 147% 295', 296* 
 
 Bowman v. New Orleans, 27 La. 
 
 Ann. 503 2953, 298^ 
 
 V. Wathen, 2 McLean, 376 
 
 480*, 486« 
 
 ■V. Wickliffe, 15 B. Mon. 84. .427" 
 Box V. Jubb, L. R. 4 Exch. Div. 
 
 76... 373' 
 
 Boyce v. California Stage Co. 25 
 
 Cal. 460 156* 
 
 859* 
 315' 
 2552 
 
 257* 
 
 & 
 
 577« 
 
 58P
 
 TABLE OF CASES. 
 
 XXlll 
 
 Boyer, Ex parte, 109 U. S. 629, 27 
 
 L. ed. 1056 370 
 
 Boyington v. Squires, 71 Wis, 276 547^ 
 Boyle V. Tainlyn, 6 Barn. & C. 
 
 337 5912 
 
 Boynton v. Longley, 19 Nev. 69 
 
 281-, 295^ 429" 
 
 Brace «. Yale, 4 Allen, 393 424- 
 
 ■». Yale, 10 Allen. 441.188\ 855' 
 Brackenridge v. Fitchbnrg, 145 
 Mass. 160, 5 New Eug. 
 
 Rep. 171 .:. 127^ 
 
 Bradbee v. Christ's Hospital, 4 
 
 Man. »feG. 714 233^ 
 
 Bradbury v. Benton, 69 Me. 194. 
 
 340-, 348^ 
 
 V. Gilford, 53 ]\Ie. 99 593^ 
 
 Bradley ». Gill, Lutw. 29 131« 
 
 V. New York & N. li. R. 
 
 Co. 21 Conn. 294 270' 
 
 B. Rea, 14 Allen , 20 634- 
 
 Bradley Fish Co. v. Dudley, 37 
 
 Conn. 136 574' ^ 
 
 Bradt v. Albany, 5 Hun, 591 293' 
 
 Brady v. Ball, 14 Ind. 317 
 
 -- 59P, 5923, 5932 
 
 V. Northwestern Ins. Co. 
 
 11 Mich. 425 658 
 
 D. Weeks,3Barb. 1.57 131'" 
 
 Bragg V. Paulk, 42 Me. 502 230' 
 
 Brailey v. Southborough, 6 Cash. 
 
 141. 3473 
 
 Brainard v. Clapp, 10 Cush. 10. _ 
 
 ---. 241', 265^ 
 
 V. Conn. River R. Co. 7 
 
 Cusb. 506, 511 75* 474^ 
 
 v. ^Missisquoi R. Co. 48 Vt. 
 
 107 933 
 
 Brakely v. Sharp, 9 N. J. Eq. 9. 
 
 169«. 185' 
 
 V. Sharp, 9 N. .1. Eq. 9, 10 
 
 N.J. Eq. 206 241^ 
 
 ®. Sharp, 10 N. J. Eq. 206. 175' 
 Branch v. Doane, 18 Conn. 233.. 425^ 
 Brand v. Troy & S. R. Co. 8 
 
 Barb. 369 35^ 
 
 Brass «. Maitland, 6 El. & Bl. 
 
 485 133' 
 
 Braxon v. Bressler, 64 111. 488... 412-* 
 Bray tJ. Wallingford. 20 Conn. 416, 
 
 419- 3393 
 
 Brayton v. Fall River, 113 Mass. 
 218, 18 Am. Rep. 470. 
 
 326S 3275, 4741 
 
 tJ.Fall River, 113 Mass. 218, 
 
 226 34R2 
 
 V. Fall River, 124 Mass. 95 89^ 
 Brearlv «. Norris, 23 Ark. 514... 487* 
 Breeds. Lynn, 126 Mass. 367.474', 562 
 Breen ®. Locke, 46 Hun, 291 385- 
 
 Breen v. New York C. & H. R. 
 
 R. Co. 109 N. Y. 297, 
 
 11 Cent. Rep. 891.... 147« 
 Brennan v. Friendsliip,(j7 Wis. 223 127* 
 Brent u Kimball, CO 111. 211 
 
 .626«, 627"> 
 
 Brew v. Van Deman, 6 Heisk. 
 
 433 160* 
 
 Brewer v. Marshall, 18 N. J. Eq. 
 
 337 221''* 
 
 V. Marshall, 18 N. J. Eq. 
 
 337. 19 N. J. Eq. 537. 221« 
 
 Brewster v. Hill, 1 N. H. 350 573* 
 
 Brice v. Bauer, 108 N. Y. 428, 11 
 
 Cent. Rep. 327.... 605 
 
 615\ 6I75. 620*, 625, 630 
 Bridgeport v. New York & N. H. 
 
 R. Co. 36 Conn. 255. 89' 
 Briegel v. Philadelphia (Fa.) 26 
 
 W. N. C. 253-. 34423 
 
 Briggs V. Lewiston & A. H. R. 
 
 Co. 79 Me. .863 25P 
 
 V. New York Cent. & H. 
 
 R. R. Co. 72 N. Y. 26 652' 
 1}. Oliver, 35 L. J. N. S. 
 
 Exch. 163 612' 
 
 V. Olson, 4 Hurl. & C. 403 147^ 
 Brigham v. Smith, 4 Gray, 297.. 
 
 159', 167', 1745 
 
 Brighthope R. Co. v. Rogers, 76 
 
 Va. 443 646" 
 
 Brightman v. Fairhaven, 7 Gray, 
 
 271 474' 
 
 t). Grinnell, 9 Pick. 14.... 603* 
 Brill V. Brill, 108 N. Y. 511, 11 
 
 Cent. Rep. 305. 245' 
 
 Brimmer v. Boston, 102 Mass. 22 334^ 
 Brisbine v. St. Paul & S. C. R. 
 
 Co. 23 Minn. 113 .... 560' 
 Bristol V. Ousatonic Water Co. 
 
 42 Conn. 403 499^ 532' 
 
 British Cast Plate Mfrs. Co. v. 
 
 Meredith, 4 T. R. 794. 6' 
 Broadbent i\ Ramsbotham, 11 
 
 Exch. 602. 2962 
 
 V. Ramsbotham, 34 Eng. 
 
 L. &Eq. 553 2802 
 
 V. Ramsbotham, 34 Eng. 
 
 L. &Eq. 555.. SOO* 
 
 Brock t). Copeland, 1 Esp. 203. . . • 
 
 172, 616', 630^ 
 
 Brondage v. Warner, 2 Hill, 145 
 
 217, 5752 
 
 Brookhaven p. Strong, 60 N. Y. 
 
 56 379' 
 
 Brooklyn v. Brooklyn C. R. Co. 
 
 47 N. Y. 475 114', 252* 
 
 Brooks tJ. Boston, 19 Pick. 174.. 35^ 
 ®. Curtis, 50N. Y. 639.... 
 
 209^ 212, 214', 2333*
 
 XXIV 
 
 TABLE OF CASES. 
 
 Brooks v. Reynolds, 106 Mass. 31 
 
 
 1768, 
 
 253 
 
 V. Taylor, 65 Mich. 208, 8 
 
 
 West. Rep. 188 
 
 
 617\ 619>, 620«, 621' «, 
 
 630=* 
 
 Brookville & M. Hydraulic Co. v. 
 
 
 Butler, 91 Ind. 187... 
 
 265 
 
 Broome v. New York & N. J. 
 
 
 Teleph. Co. 42 N. J. 
 
 
 Eq. 141, 5 Cent. Rep. 
 
 
 874 
 
 97' 
 
 Brophy v. Hvatt, 10 Colo. 223.. . 
 
 6or 
 
 Broughton v. Singleton, 2 Not.t. 
 
 
 & McC. 338 
 
 543' 
 
 Brown v. Berry, 6 Coldw. 98 
 
 
 166', 
 
 171' 
 
 V. Bigelow, 10 Allen, 242-. 
 
 6355 
 
 V. Black, 43 Me. 443.. 4046, 
 
 413=' 
 
 V. Bowen, 30N.Y.519.5454, 
 
 548' 
 
 V. Cape Girardeau, 90 Mo. 
 
 
 377, 7 West. Rep. 154 
 
 337'^ 
 
 V. Carpenter, 26 Vt. 638... 
 
 
 .-619', 620«, 625^ 
 
 627« 
 
 V. Cayuga & S. R. Co. 12 
 
 
 N. Y. 486 
 
 60 
 
 V. Chadbourne, 31 Me. 9, 50 
 
 
 Am. Dec. 641 
 
 
 376\ 377^ 402', 
 
 
 403' \ 404«, 412' ^ ^, 415, 
 
 5503 
 
 v. Chadbourne, 31 Me. 9, 
 
 
 23,25.... 
 
 376« 
 
 V. Collins. 53 N. H. 442... 
 
 269' 
 
 V. DeGroflf, 50N. J.L. 409, 
 
 
 12 Cent. Rep. 818.-.. 
 
 
 40,4695', 
 
 470' 
 
 V. Giles, 1 Car. & P. 118.. 
 
 
 5915 
 
 . 615 
 
 V. Hannibal & St. J. R. Co. 
 
 
 33 Mo. 309 
 
 147' 
 
 V. lUius, 27 Conn. 84 
 
 
 275, 287^ 
 
 , 289 
 
 V. Kennedy, 5 Har. & J. 195 
 
 5012 
 
 V. McAllister, 39 Cal. 573-. 
 
 1083 
 
 V. Perkins, 12 Gray, 100-40 
 
 470' 
 
 V. Preston, 38 Conn. 219.. 
 
 3748 
 
 V. Robins, 4 Hurl. & N. 186 
 
 
 ...38', 194 
 
 198 
 
 V. Stone, 10 Gray, 61.. 2433 
 
 265' 
 
 «. Susquehanna Boom Co. 
 
 
 109 Pa. 57, 1 Cent. 
 
 
 Rep. 56 
 
 5572 
 
 V. Vinalhaven, 65 Me. 402 
 
 
 3355, 
 
 3522 
 
 V. Volkening, 64 N. Y. 76 
 
 242' 
 
 V. Watson, 47 Me. 161 
 
 7923 
 
 V. Windsor, 1 Cromp. & J. 
 
 
 20... 192 
 
 1992 
 
 Browne v. Scotield, 8 Barb. 239. 
 
 
 403', 
 
 405' 
 
 Brubaker v. Paul, 7 Dana, 428... 
 
 4033 
 
 Bruker ». Covington. 69 Ind. 
 
 33 126* 
 
 Brunning??. Springfield, 17111. 143 342* 
 Brusso V. Buffalo, 90 N. Y. 679.. 100* 
 Bryan v. Idaho Quariz Min. Co. 
 
 73 Cal. 249 449"^ 
 
 Bryant v. Glidden, 36 Me. 36 406' 
 
 Buccleuch v. IVletropolitan Board 
 
 of Works, L. R. 5 H. 
 
 L. 418 359^6 
 
 Buck V. Biddleford, 82 Me. 433.. 115' 
 Buckbee v. Brown, 21 Wend. 110 566* 
 Buckby «. Coles, 5 Taunt. 311. . 174^ 
 Bucki V. Cone, 25 Fla. 1 372^, 
 
 374', 376', 4033, 558^ 559» 
 Buckley v. Gutta Percha & R. 
 
 Mfg. Co. 113 N. Y. 540 136* 
 V. Leonard, 4 Denio, 500.. 
 
 .-605«, 606,617', 620' * 
 
 Budd V. Sipp, 13 N. J. L. 348 .531', 549* 
 Buddington v. Bradley, 10 Conn. 
 
 213 :.-.. 287* 
 
 V. Shearer, 20 Pick. 477, 22 
 
 Pick. 427... 594» 
 
 Buffett V. Troy & B. R. Co. 40 
 
 JN. Y. 168 491* 
 
 Buffum «. Harris, 5 R. I. 243.295', 296* 
 Buford V. Houtz, 133 U. S. 320, 
 
 33L. ed. 618 592 
 
 Bulger «. Eden, 82 Me. 352, 9 L. 
 
 R. A. 205 
 
 318', 336 2 3_ 3413, 344s 
 
 Bullen ®.Runnels,2 N.H. 255.236^, 262* 
 Bullock V. Wilson, 2 Port. (Ala.) 
 
 436 380^ 
 
 Bulman v. Furness R. Co. 32 L. 
 
 T. N. S. 430... 24* 
 
 Burbank v. Crooker, 7 Gray, 159 201=* 
 v. Pillsbury, 48 N. H. 475. 229' 
 Burcbell v. Hickisson, 50 L. J. N. 
 
 S. Q. B. 101 23' 
 
 Burden v. Stein, 27 Ala. 104 
 
 441^ 45P, 477' 
 
 Burdick v. Cheadle, 26 Ohio St. 
 
 393 26* 
 
 Burditto. Swenson,'i7'Tex."562. 70' 
 Burgess ?j. Gray, 1 C. B. 578.... 250' 
 Burgwyn ®. Whitfield, 81 N. C. 
 
 261 592'* 
 
 Burk V. Simonson, 104 Ind. 173, 
 
 1 West. Rep. 190 
 
 ...4093, 545', 547* 
 
 Burke v. Louisville & N. R. Co. 
 
 7 Heisk. 451 648^ 667' 
 
 V. Louisville & N. R. Co. 
 
 7 Heisk. 452. 664' 
 
 V. Missouri P. R. Co. 29 
 
 Mo. App. 370 300* 
 
 X. Smith. 69 Mich. 380, 15 
 
 West. Rep. 371 IV
 
 TABLE OF CASES. 
 
 XXV 
 
 Burke v. Witherbee, 98 N. Y. 563 138' 
 Burliug?). Reed, 11 Q. B. 904.-. 64b' 
 Burlington v. Gilbert, 31 Iowa, 
 
 356. 4852 
 
 Burlington & C. R. Co. ©. 
 Schweikart, 10 Colo. 
 
 178... 23J3, 238* 
 
 Burlington & H. Ferry Co. v. 
 
 Davis. 48 Iowa, 133.. 482' 
 Burlington & M. R. R. Co. v. 
 Westover, 4 Neb. 268. 
 
 --.648*, 654'^ 666' 
 
 Burlington, C. R. & M. R. Co. v. 
 
 Stewart, 39 Iowa, 267 485'' 
 Burlock t). Peck, 2 Duer, 98.... 223 
 Burnham v. Kempton, 44 N. H. 
 
 78. 428^ 
 
 V. Kempton, 44 N. H. 78, 91 428'' 
 V. Kempton, 44 N. H. 88.. 427'' 
 «. Kempton, 44 N. H. 90.. 262^ 
 V. Nevins, 144 Mass. 88, 3 
 New Eng. Rep. 792.. 
 
 253, 2652 3 
 
 V. Nevins, 144 Mass. 88, 94 176* 
 V. Sherwood, 66 Conn. 299, 
 
 6 New Ene. Rep. 627. 6346 
 V. Strolher, 66 Mich. 519. . 622» 
 Burrill «. Augusta, 78 Me. 118, 1 
 New Eng. Rep, 697.. 
 
 -334^ ^ 336', 34P 
 
 Burroughs v. Satterlee, 67 Iowa, 
 
 396... 12'^ 
 
 V. Wliitwam, 59 Mich. 279 
 
 372', 405', 4996, 517 
 
 Burrow «. Terra Haute & L. R. 
 C... 107 Ind. 432, 5 
 
 West. Rep. 626 182« 
 
 Burrows v. Burrows, 82 Cal. 564 449' 
 V. Coke Co. L. R. 7 Exch. 
 
 96, 97. 367' 
 
 V. Gallup, 32 Conn. 501.. 
 
 3748, 55oa 
 
 Burton??. McClellan, 3 111. 434.. 644^ 
 V. West Jersey Ferry Co. 
 114 U. S. 474, 29 L. 
 
 ed.215... 4882, 489^ 
 
 BurwelU. Hobson, 12Gratt. 322 46P * 
 
 Buryi). Pope, Cro. Eliz. 118 177 
 
 Busby ?7. Holthaus, 46 Mo. 161.. 38' 
 Bush V. Brainard, 1 Cow. 79, note 589^ 
 V. Johnston, 23 Pa. 209... 108^ 
 V. Portland (Or.) 23 Pac. 
 
 Rep. 667 306« 
 
 v. Steinman, 1 Bos. & P. 
 
 404 543 
 
 V. Trowbridee Waterworks 
 
 Co. L. R. 10 Ch. 459. 453' 
 Bussr. Dyer, 125 Mass. 287-16S^ 172* 
 Bussell V. Steuben, 57 111. 35.... 3:3&3 
 Buster v. New kirk, 20 Johns. 75 543' 
 
 Butchers Union S. H. & L. S. L. 
 
 Co. V. Crescent City L. 
 
 S. L. & S. H. Co. Ill 
 
 U. S. 755, 28 L. ed. 590 664^ 
 
 Butler V. Peck, 16 Ohio St. 334.. 
 
 2953 299* 
 V. Peck, 16 Ohi'o"st.'335..' 148» 
 V. Thomasville, 74 Ga. 570 320* 
 V. Wildman, 3 Barn. & Aid. 
 
 398 659' 
 
 Butt®. Napier, 14 Bush, 39.. 182', 184^ 
 Butte Canal & D. Co. v. Vaughn, 
 
 11 Cal. 143.. 445^ 
 
 Butterfield v. Boston, 148 Mass. 
 
 544 149* 
 
 V. Forrester, 11 East, 60.. 365' 
 V. Gilchrist, 63 Mich. 155, 
 
 5 West. Rep. 744 557* 
 
 Butterfoss v. State, 40 N. J. Eq. 
 
 325 288' 
 
 Butterworth v. Crawford, 46 N. 
 
 Y. 349 168-' 
 
 Buttrick v. Lowell, 1 Allen, 172.. 335'' 
 
 Butzr. Ihrie, 1 Rawle, 21 8 580' 
 
 V. Ihrie, 1 Rawle, 218, 222. 581* 
 Buxendin v. Sharp, 2 Snlk. 6G2.. 605* 
 Bybee v. State, 94 Ind. 443... 264, 264* 
 Byerly v. Ananiosa, 79 Iowa, 204. 128' 
 Byrne v. Boadle.2 Hurl. & C. 721 156*- 
 V. Boadle, 2 Hurl. & C. 722 
 
 146', 1472 
 
 V. Crafts, 73 Cal. 641 450' 
 
 V. Morehouse, 22 111. 603.. 184'^ 
 V. New York C. & H. R. R. 
 Co. 104 N. Y. 362, 6 
 
 Cent. Rep. 393 24« 
 
 Byrnes v. Cohoes, 5 Hun, 602, 
 
 affd. 67 N. Y. 204, 207 293* 
 V. Cohoes, 67 N. Y, 204... 
 
 2902 3, 
 
 292* '-, 304^ 311*, 312, 
 320^ 321', 3253, 326=, 327^ " 
 
 C. 
 
 Cadye. Conger, 19 N. Y. 256... 236* 
 
 Cagle V. Parker, 97 N. C. 271 176'* 
 
 Cahill V. Eastman, 18 Minn. 324. 
 
 210\ 271', 436, 439 
 
 Cairo & V. R. Co. v. Stevens. 73 
 Ind. 278, 38 Am. Rep. 
 
 139 148^ 300'^ 325* 
 
 V. Stevens, 73 Ind. 279.... 295' 
 Calder «. Sraalley, 66 Iowa, 219.. 
 
 .73'^ 108% 109', 113', 114 
 Caldwell v. New Jersev S. B. Co. 
 
 47 N. Y. 282.... 363' 
 
 V. Sanderson, 69 Wis. 52.. 
 
 5443, 548*
 
 XXVI 
 
 TABLE OF CASES. 
 
 Calkins v. Barger, 44 Barb. 424.. 
 
 135^ 645^ 
 
 ■Callanan v. Gilman, 107 N. Y. 360, 
 
 9 Cent. Kep. 900 
 
 T.T, 101^ ^^ 2483 
 
 Camden v. Mulford, 26 JSI. J. L. 
 
 56 311* 
 
 Camden & A. Land Co. v. Lippin- 
 
 cott, 45 N. J. L 405.. 401= 
 
 Camp v. Wood, 76 N. Y. 92 58^ 
 
 €ampbell «. Boyd, 88 N. C. 129. W 
 V. Lunsford, 83 Ala. 512. . 
 
 23', 106' 
 
 v. Mesier, 4 Johns. Ch. 334, 
 1 N. Y. Ch. L. ed. 858 
 
 204', 213, 216^ 225 
 
 v. Pennsylvania S. V. R. 
 Co. (Pa.) 11 Cent. Rep. 
 
 660. 763 
 
 V. Portland Sugar Co., 62 
 
 Me. 552 567', 568^ 
 
 v. Race, 7 Cush. 408 124-* 
 
 V. Seaman, 63 N. Y. 568.. 409> 
 1). Stillwater, 32 Minn. 308 107« 
 
 V. Wilson, 3 East, 2tt4 178' 
 
 Canal Appraisers e. People, 17 
 
 Weud. 571,597 389= 
 
 •Canal Comrs. v. People, 5 Wend. 
 
 423 3773, 452= 
 
 ®. People, 5 Wend. 423, 448 
 
 463', 4792 
 
 V. People, 5 Wend. 423-451 512' 
 «. People, 5 Wend. 452 — 435^ 
 Canal Fund Comrs. v. Kempshall, 
 
 26 Wend. 404 389= 
 
 €anham v. Fisk, 2 Cromp. & J. 
 
 126, and note . . . .5TS' , 574= 
 €annon«. Boyd, 73 Pa. 179. .166', 171« 
 Canny v. Andrews, 123 Mass. 155 580^ 
 Canterbury®. Attv-Gen. 1 Phipps, 
 
 'Ch. 30*6, 315, 320 64P 
 
 ■Canton v. Nist, 9 Ohio St. 439... 603' 
 Cant well v. Appleton, 71 Wis. 463 127= 
 Cape Girardeau v. Campbell, 26 
 
 Mo. App. 12 391' 2 
 
 ■Cape Girardeau & B. M. & G. 
 Road Co. V. Renfroe, 
 
 58 Mo. 265 90' 
 
 €arbrey v. Willis, 7 Allen, 364 
 
 168% 17P 
 
 «. Willis, 7 Allen, 370__... 1686 
 Oardwell v. American River 
 Bridsre Co. 113 U. S. 
 205, 28 L.ed. 959-464', 466^ 
 Carey «. Brooks, 1 Hill,L. 365.472, 656= 
 Carhart v. Auburn Gas Light Co. 
 
 22 Barb. 297 288', 289 
 
 Carleton v. Franconia Iron & Steel 
 
 Co. 99 Mich. 216 
 
 18-, 193, 20=, 566-3 
 
 Carleton «. Redington, 21 N. H. 
 
 291 56, 428» 
 
 V. Rugg. 149 Mass. 550, 5 
 
 L. R. A. 193.. 477=' 
 
 Carleton Mills Co. v. Silver, 82 
 
 Me. 215, 8 L. R. A. 446 422= » 
 Carlin v. DriscoU, 50 N. J. L. 28, 
 
 10 Cent, Rep, 176 
 
 36', 72=, 247= 
 
 V. Paul, 11 Mo. 32. 577« 
 
 Carlisle «. Cooper, 19 N. J. Eq. 
 
 256 4283 
 
 V. Cooper, 19 N. J. Eq. 260 263= 
 V. Stevenson, 3 Md. Ch. 
 
 506, 507 4275 
 
 Carlton v. Blake (Mass.) 25 N. E. 
 
 Rep. 83 2091 
 
 Carlyon v. Lovering, 1 Hurl. & N. 
 
 784 2883 
 
 Caroon i\ Doxey, 3 Jones, L. 23. 235* 
 Carpenter v. Central Park, N. & 
 E. R. Co. 11 Abb. N. 
 
 S. 416 252* 
 
 «. Latta, 29 Kan. 591 6303 
 
 V. Lippitt, 77 Mo. 242 628' 
 
 V. Mann, 17 Wis. 155.126*, 475= 
 Carpue v. London & B. R. Co. 5 
 
 Q. B. 747 155* 
 
 Can V. Foster, 3 Q. B. 581 262* 
 
 V. Northern Liberties, 3" 
 
 Pa. 324... .--_330*«'' 
 
 Carrington v. St. Louis, 89 Mo. 
 
 208, 4 West. Rep. 679. 342' 
 V. Taylor, 11 East, 571.504, 527 
 Carroll v. Minnesota Vallev R. 
 
 Co. 14 Minn. 57" 5" 
 
 1). Staten Island R. Co. 58 
 
 N. Y. 126.... 363' 
 
 V. Weiler, 1 Hun. 605 594'« 
 
 V. Weiler, 4 Thomp. & C. 
 
 131 627« 
 
 Carron v. Baltimore, 33 U. S. 7 
 
 Pet. 243, 8 L. ed. 672. 359'' 
 Carson v. Blazer, 2 Binn. 475, 4 
 
 Am. Dec. 483 
 
 380% 386', 416, 514' 
 
 «. Central R.Co.35Cal.325. 248= 
 
 V. Godley, 26 Pa. Ill 44', 51 
 
 V. Western R. Co. 8 Gray, 
 
 423, 424 12= 
 
 Carstairs v. Taylor, L. R. 6 Exch. 
 
 217 136«, 2566, 273= 
 
 Carter v. Chambers, 79 Ala. 223. 127* 
 
 V. Dow, 16 Wis. 298 626= 
 
 v. Murcot, 4 Burr. 2162.. 
 
 4996, 530' 
 
 V. Thurston, 58 N. H. 104, 
 
 106 403» 
 
 V. Thurston, 58 N. H. 104, 
 
 107 405'
 
 TABLE OF CASES. 
 
 XXVll 
 
 -Carter v. Thurston, 58 N. H. 108. 3773 
 •Carlerville v Cook, 129 111. 152,4 
 
 L. R. A. 721- 6603 
 
 C'artwright v. Mapleson, 53 N. Y. 
 
 622... 571' 
 
 Caruthers v. Pemberton, 1 Mont. 
 
 Ill 445« 
 
 Cary v. Daniels, 5 Met. 236.. 356', 443« 
 V. Daniels, 5 Met. 237, 8 
 
 Met. 476... 455- 
 
 V. Daniels, 8 Met. 466, 41 
 
 Am. Dec. 532 425\ 545^ 
 
 v. Daniels, 8 Met. 477, 41 
 
 Am. Dec. 532.... 411', 441 
 Oase V. Chicago, R I. & P. R. 
 
 Co. 64 Iowa, 762.133-, 146^ 
 
 V. Hall, 21 111. 632 6028 
 
 V. Loftus, 39 Fed. Rep. 730, 
 
 5L. R. A.684.. 
 
 359^ 380^ 5603 
 
 ■Case of the Monopolies, 11 Coke, 
 
 87-.. -. - 527' 
 
 Caspary v. Portland (Or.) 24 Pac. 
 
 Rep. 1036 334^ 347^ 
 
 •Cassidy v. Old Colony R. Co. 
 
 141 Mass. 174, 179, 1 
 
 ISew Eng. Rep. 606.. 348^ 
 Casswell «. Worth, 25 L. J. N. S. 
 
 Q B. 121 584' 
 
 Castello V. Laudwehr, 2S Wis. 
 
 522. 479-, 5303, 5316 
 
 •Castle V. Parker, 18 L. T. N. S. 
 
 367 106' 
 
 Caswell V. Chicago & N. W. R. 
 
 Co. 42 Wis. 193 667' 
 
 V. Johnson, 58 Me. 164 498- 
 
 ■Cates V. Wadlington, 1 McCord, 
 
 L. 580. 377' 2, 514- 
 
 Catron v. Nichols, 81 Mo. 80 644- 
 
 Cauley v. Pittsburgh, C. & St. L. 
 
 R. Co. 95 Pa. 398, 40 
 
 Am. Rep. 664 233, 26- 
 
 Cave V. Crafts, 53 Cal. 135 168^ 
 
 V. Crafts, 53 Cal. 138 166' 
 
 Centerville v. Woods, 57 Ind. 
 
 192... 264^ 
 
 Central City Horse R. Co. v. Ft. 
 
 Clark Horse R. Co. 
 
 81111.523 89' 
 
 Central R. Co. v. Crosby, 74 Ga. 
 
 737 5'^ 
 
 «. Pennsylvania R. Co. 31 
 
 N. J. Eq. 475. 90^ 
 
 7).Valentine,29N. J. L. 561 2413 
 ■Central R. »& Bkg. Co. v. Smith, 
 
 76 Ala. 572, 25 Am. 
 
 Rep. 353 491- 
 
 Central Trust Co. v. Wabash, St. 
 
 L. & P. R. Co. 33 
 
 Fed. Rep. 566 559- 
 
 Central Wharf Co.?;. India Wharf, 
 
 123 Ma-s. .067 575' 
 
 Centraliaw. Krouse, 64 111. 19... 129^ 
 Cesar 0. Karutz, 00 N. Y. 229... 15' 
 Chadwick v. Trower, 6 Biug. N. 
 
 C. 1 194, 199- 
 
 Chaffee v. Telephone & Teleg. 
 
 Constr. Co. 77 i\Iich. 
 
 625, 6 L. R. A. 455... 6683 
 Chalk V. McAlily, 11 Rich. L. 
 
 153. 427'» 
 
 Chamberlain v. Ward, 62 U. S. 21 
 
 How. 548, 16 L. ed. 
 
 211 -- 369' 
 
 Champlaiu & St. L. R. Co. v. 
 
 Valentine, 19 Barb. 485 512' 
 Champlin v. Mortran, 20 111. I.s2. 580^ 
 Chandler v. Howland, 7 Gray. 348 40U' 
 V. Jamaica Pond Aqiieduct 
 
 Corp. 125 Mass. 544.. 5803 'J 
 V. Thompson, 3 Camp. 80. 255^ 
 Chapels. Smith, 80 Mich. 100... 
 
 425=, 426-, 531' 
 
 Chapin v. Brown, 15 R. I. 579, 4 
 
 New Eng. Rep. 918. . 243« 
 Chapman v. Gray, 15 Mass. 445.. 573^ 
 1). Hoskins, 2 Md. Ch. 485 
 
 393-, 397'' 
 
 V. Rochester, HON. Y. 273, 
 
 I L. R. A. 296, and 
 note, 13 Cent. Rep. 426 
 
 8-, 14', 154-, 290 
 
 V. Rothwell, El. Bl. & El. 
 
 168 193, 150^* 
 
 Charles River Bridge v. Warren 
 Bridge, 36 U. S. 11 
 Pet. 506, 9 L. ed. 808. 484= 
 ». Warren Bridge, 36 U. S. 
 
 II Pet. 536, 9 L. ed. 
 819. 481« 
 
 Charless v. Rankin, 22 Mo. 566.. 
 
 ....38', 198', 199-, 200-* 
 «. Rankin, 22 Mo. 566, 66 
 
 Am. Dec. 644, and note, 
 
 649.... 200- 
 
 Charlestown?). Middlesex County, 
 
 3 Met. 202 3743, 4051 
 
 Charlotte ®. Pembroke Iron 
 
 Works(Me.)8L. R. A. 
 
 828 70«. 71' 
 
 Charlwood v. Greig, 3 Car. & K. 
 
 46 586^ 620' 
 
 Chase v. Merrimack Bank, 19 
 
 Pick. 564, 569 339' 
 
 «. Silverstone, 62 Me. 175. 
 
 280', 4543 
 
 Chasemore v. Richards, 2 Hurl. 
 
 & N. 168, 7 H. L. Cas. 
 
 349. 287* 
 
 ®.Richards.2Hurl. «S;N.190 443«
 
 XXVlll 
 
 TABLE OF CASES. 
 
 Chasemorew. Richards, 5 Hurl. & 
 
 N.990, 7H. L. Cas.349 283' 
 v. Richards, 7 H. L. Cas. 
 
 349 ..257-^280' 2, 4543 
 
 Chatfield v. Wilson, 28 Vt. 49.12', 296^ 
 Chauntler v. Robinson, 4 Exch. 
 
 163 1543, 2336 
 
 Chenango Bridge Co. v. Lewis, 63 
 
 Barb. 111. 484'' 
 
 ■D. Paige, 83 N. Y. 178-... 
 
 389-, 463' ^ 479' \ 5303, 531^ 
 Cheney v. O'Brien, 69 Cal. 199.. 
 
 ..176S, 235^ 
 
 Chesbrough v. Comrs. 37 Ohio 
 
 St. 516.--. 70> 
 
 Cheshire R. Co. v. Foster, 51 N. 
 
 H. 490 269' 
 
 Chesley v. De Graff, 35 Minn. 
 
 415 557' 
 
 «. King, 74 Me. 164- - 
 
 ir, 12^ 283', 285 
 
 Chestnut Hill & S. H. Turnp. 
 Co. «. Piper, 77 Pa. 
 
 432--- -. ISP 
 
 Chew V. Cook, 39 N. J. Eq. 396, 
 
 note - 5762 
 
 Chicago V. Gallagher, 44 111. 295. 
 
 ...316', 332' 
 
 V. Hesing, 83 111. 204 29'' 
 
 V. Keefe, 114 111. 223 104=* 
 
 V. Lafiin. 49 111. 172.. 389- 
 
 ®. Landass, 66 111. 361 316' 
 
 V. McGiven, 78 111. 347 342' 
 
 V. Major, 18 111. 349 29'^ 
 
 r. O'Brennan. 65 111. 160. 68' 
 «. Robbins, 67 U. S. 2 
 Black, 418, 17 L. ed. 
 298. 39^ 100^ 114', 342', 343'' 
 V. Union Bldg. Asso. 102 
 
 111. 379 76' 
 
 V. Wright, 69 111. 318 184' 
 
 Chicago «fe A."R. Co. «. Adier, 129 
 
 111. 335 382^ 
 
 «. Glenney, 118 111. 487, 6 
 
 West. Rep. 544 _ 298^ 
 
 V. Pennell, 94 111. 448 6663 
 
 V. Pennell, 110 111. 435.... 654' 
 
 V. Utley, 38 111. 410 595* 
 
 Chicago & A. Oil & Min. Co. v. 
 U. S. Petroleum Co. 
 
 57 Pa. 83. 80« 
 
 Chicago & E. I. R. Co. v. Loeb, 
 118 111. 203, 5 West. 
 
 Rep. 893 735 
 
 Chicago & M. R. Co. v. Patchin, 
 
 16 111. 198 147' 
 
 Chicago & N.W. R. Co. v. Simon- 
 son, 54 111. 5U4...6654, 669* 
 Chicago, B. & Q. R. Co. v. Iowa, 
 
 94U.S.155,24L.ed. 94 97' 
 
 Chicago, B. & Q. R. Co. v. Por- 
 ter, 72 Iowa, 426 386«' 
 
 V. Schaffer, 124 111. 112, 14 
 
 West. Rep. 139 2568, 476^ 
 
 V. Stumps, 55 111. 367 134' 
 
 Chicago, D. & V. R. Co. v. Chi- 
 cago, 121 III. 176, 9 
 West. Rep. 493 88»'» 
 
 Chicago, K. & W. R. Co. ». Mor- 
 row, 42 Kan. 339 358' 
 
 Chicago, St. L. & N. O. R. Co. v. 
 
 Trotter, 61 Mi.ss. 417. 133' 
 
 Chicago Gasligiit «& Coke Co. ». 
 Peoi)ie's Gaslight & 
 Coke Co. 121 111. 530, 
 11 West. Rep. 69 89* 
 
 Chick V. Newberry & Union 
 
 Counties, 27 S. C. 419 482'' 
 
 Chidsey v. Canton, 17 Conn. 475, 
 
 478 3393 
 
 Child «. Boston. 4 Allen, 41 
 
 .329'^ ^ 33P «, 3343, 337, 340- 
 V. Boston, 4 Allen, 41, 51. 
 
 340', 344* 
 
 V. Boston, 4 Allen, 41, 52. 
 
 3433, 349* 
 
 V. Boston, 4 Allen, 43 318 
 
 V. Boston, 4 Allen. 53 347* 
 
 «. Chappell, 9 N. Y. 246, 
 
 257.... 184^ 
 
 ■0. Greenhill, Cro. Car. 553 498« 
 
 Childs V. Nelson, 09 Wis. 125... 72' 
 
 China v. Southwick, 12 Me. 238. 
 
 431, 546^ 
 
 Choate v. Burnham, 7 Pick. 274. 163* 
 
 Chope V. Eureka, 78 Cal. 588, 4 
 
 L. R A. 325 34P 
 
 Christian v. Van Tassel, 13 Fed. 
 
 Rep. 884 369* 
 
 Christie v. Griggs, 2 Camp. 79... 156' 
 
 Church V. Meeker, 34 Conn. 429. 480»- 
 
 Church of the Ascension v. Buck- 
 hart, 3 Hill, 193. -.1045, 148 
 
 Churchill v. Grundy, 5 Dana, 99. 487''^ 
 V. Lauer, 84 Cal. 233 459' 
 
 Churchward «. Studdy, 14 East, 
 
 249.. 5263, 528, 543' 
 
 Chunot «. Larson, 43 Wis. 536.. 615- 
 
 Cihak V. Klekr, 117 111. 643, 5 
 
 West. Rep. 490 
 
 163^ 165^ 166* 
 
 Cincinnati v. Stone, 5 Ohio St. 
 
 38 114* 
 
 v. White, 31 U. S. 6 Pet. 
 
 431, 8 L. ed. 452 564' 
 
 V. White, 31 U. S. 6 Pet. 
 
 436. 8 L. ed. 455 1883 
 
 Cincinnati & S. G. Ave. R. Co. y. 
 Cumminsville, 14 Ohio 
 St. 523 82', 93*
 
 TABLE OF CASES. 
 
 XXIX 
 
 Cincinnati, I., St. L. & C. R. Co. 
 V. Cooper, 120 lud. 
 
 469-473.. 656^ 
 
 Oincinnati, P. B. & 8. P. Packet 
 Co. V. Catlettsburg, 105 
 U. S. 559, 26 L. ed. 
 
 1109 372' 
 
 Cincinnati St. R. Co. v. Cum- 
 minsville, 14 Ohio St. 
 
 523.- 248= 
 
 Citizens St. R. Co. v. Jones, 84 
 
 Fed. Rep. 579.. SS^ 
 
 €ity of Baltiinoie.The, 5 Ben. 474 540' 
 City of Erie, Tlje, v. Canfield, 27 
 
 Mich. 479.. 405' 
 
 €ity of Hartford, The, 97 U. S. 
 
 323, 24 L. ed. 930.... 369' 
 €ity of Salem. The, 37 Fed. Rep. 
 
 846, 2L. R. A. 380... 376« 
 Civilta, The, 193 U. S. 699, 26 L. 
 
 ed. 599 369' 
 
 €lancy v. Byrne, 56 N. Y. 129.. 
 
 50', 58, 61', 67 
 
 V. Byrne, 56 N. Y. 133 113 
 
 Clapp V. Boston, 133 Mass. 367.. 202' 
 V. Herrick, 129 Mass. 292. 548' 
 Olaremont v. Carlton, 2 N. H. 
 
 369, 371 50P 
 
 €larita, The, 90 U. S. 23 Wall. 1, 
 
 23 L. ed. 146.. 136* 
 
 Clark V. Adams, 18 Vt. 425 599' 
 
 V. Barrington. 41 N. H. 44 127* 
 V. Campau, 19 Mich, 325. 397^ 
 «. Campau, 19Mich. 328.. 517- 
 v. Chambers, L. R. 3 Q. 
 
 B. Div. 327 
 
 ....16', 367', 584, 611=. 612^ 
 V. Cogge, Cro. Jac. 170... 174" 
 
 V. Conroe, 38 Vt. 469 280' 
 
 V. Farmers Shoe & C. Co. 
 
 16 Mo. App. 463 52 
 
 V. Foot, 8 Johns. 421.. 641*, 644- 
 V. Foot, 8 Johns. 422.. 135*, 644 
 V. Fry, 8 Ohio St. 358.:.. 1242 
 V. Gaflfeuey, 116 111. 362, 3 
 
 West. Rep. 581 18P 
 
 v. Keliher, 107 Mass. 406.. 628' 
 
 V. Lewis, 35 111. 417 601' ^ 
 
 V. Look port, 49 Barb. 580. 342- 
 V. Manchester, 62 N. H. 577 23« 
 V. Peckham, 9 R. I. 455.. 
 
 2922, 3307 
 
 «. Peckham, 9 R. I. 458.. 327^ 
 V. Peckham, 10 R. I. 35... 79' 
 V. Pecki)am,9 R.I. 455, 10 
 
 R. L 35, 38 3592 
 
 «. Rochester, 43 Hun, 271 
 
 3045, 326* 
 
 t). Saybrook, 21 Conn. 813, 
 
 327 774 
 
 Clark V. Union Ferry Co. 35 N. 
 
 Y. 485 488^ 490* 
 
 V. Wilmington, 5 Harr. 
 
 (Del.)243_.. 305» 
 
 Clarke v. Crimmins (Sup. Ct.) 32 
 
 N. Y. S. R. 978 21 
 
 «. Providence, 16 R. I. , 
 
 1 L. R. A. 725. ...531', 541« 
 V. Rhode Island E. L. Co. 
 16 R. 1. — , 17 Atl. 
 
 Rep. 50... 2P 
 
 Claude v. Weir (Q. B.) 4 Montreal 
 
 L. Rep. 197 294' 
 
 Clawson v. Primrose, 4 Del. Ch. 
 
 643 179* 
 
 Clayburgh v. Chicago, 25 111. 533 342' 
 Cleary v. Oceanic Steam Nav. 
 
 Co. 40 Fed. Rep. 908 567* 
 Cleland v. Thornton, 43 Cal. 437 
 
 6442. 6472 
 
 Clemence v. Auburn, 66 N. Y. 
 
 334,339.. 316' 
 
 Clement v. Gould, 61 Vt. 573.423«, 458« 
 Cleveland v. Grand Trunk R. 
 Co. 42 Vt. 449 ...654' 
 D. New Jersey Steamboat 
 Co. 68 N. Y. 306.... 
 V. New Jersey Steamboat 
 Co. 68 N. Y. 308...- 
 Cleveland, C. & C. R. Co. v. El- 
 liott, 4 Ohio St. 474. . 
 Cleveland, C, C. & I. R. Co. v. 
 Newell, 104 Ind. 264, 
 
 1 West. Rep. 890 
 
 V. Walrath, 38 0hioSt. 461 
 Cleves V. Willoughby, 7 Hill, 83 
 Clifford V. Dam, 12' Jones & S. 
 891, 81 N. Y. 52 
 
 V. Dam, 81 N. Y. 52 
 
 54, 108S 110, 113 
 
 V. Dam, 81 N. Y. 56 
 
 52^ 2473, 338* 
 
 V. Denver, S. & P. R. Co. 
 
 9 Colo. 333 143' 
 
 Clifton Iron Co. v. Dye, 87 Ala. 
 
 468..- 293", 
 
 Cline V. Crescent City R. Co. (La.) 
 
 6 So. Rep. 851 
 
 Clinton v. Bacon, 56 Conn. 508.. 
 V. Buell, 55 Conn. 263, 5 
 
 NewEng.Rep.233.540«, 54l« 
 V. Howard, 42 Conn. 294.. 
 V. Myers, 46 N. Y. 511, 7 
 
 Am. Rep. 373. 379 
 
 Clore V. Mclntire, 120 Ind. 262- 
 
 265 
 
 Clowes V. Staffordshire Potteries 
 Waterworks Co. L. R. 
 8 Ch. 142, 4 Eng. Rep. 
 (Moak's 7wi€ii) 821 456' 
 
 664' 
 
 138' 
 593' 
 
 155* 
 
 1559 
 61* 
 
 .... 110' 
 
 2942 
 
 342' 
 531' 
 
 250' 
 4565 
 6563
 
 XXX 
 
 TABLE OF CASES. 
 
 Clussman v. Long Island R. Co. 
 
 9 Hun, 618 19== 
 
 Clute ®. Fisher, 65 Mich. 48, 8 
 
 AVest. Rep. 121 517' 
 
 Coates «. Missouri, K. & T. R. Co. 
 
 61 Mo. 38 654- 
 
 Cobb V. Bennett, 75 Pa. 326.-539, 540' 
 v. Davenport, 32 N. J. L. 
 
 369 378^ 5013 
 
 v. Portland, 55 Me. 381 ... 3353 
 
 V. Smith, 16 Wis. 661 427= 
 
 Coburn, Ex parte, 1 Cow. .568... 185^ 
 
 V. Ames, 53 Cal. 385 79^ 
 
 Cocker ». Cowper, 1 Cromp. M. & 
 
 R. 418 181' 
 
 Cockerham v. Nixon, 11 Ired. L. 
 
 269_ 6043, 6065 
 
 Coddington v. Brooklyn C. R. Co. 
 102 N. Y.'66, 2 Cent. 
 
 Rep. 913 363' 
 
 Codman v. Evans, 1 Allen, 443-- 265^ 
 
 «. Evans, 1 Allen, 446 163' 
 
 1}. Evans, 5 Allen, 310 .... 189^ 
 Coffin 1}. Field, 7 Cush. 355- .6018, eoS'* 
 V. Left Hand Ditch Co. 6 
 
 Colo. 443 447 
 
 V. Talman, 8 N. Y. 465 220^ 
 
 V. Vincent, 12 Cush. 98.-- 601' 
 Cohen v. New York, 113 N. Y. 
 533, 4 L. R. A. 406... 
 
 - 101', 333-* 
 
 «. New York, 113 N. Y. 536, 
 
 4L.R. A. 408 75' 247^ 
 
 v. New York, 1 13 N. Y. 537 99' 
 
 Cokerw Birge, 10 Ga. 336.- 1319 
 
 Colburn ». Richards, 13 Mass. 420 443« 
 Colchester v. Brooke, 7 Q. B. 339 
 
 - -- 500^ 540' 
 
 Cole v. Eastham, 133 Mass. 65... 496' 
 V. Hughes, 54 N. Y. 445.. 
 
 2203, 222, 222' 
 
 «. Sprowl, 35 Me. 161.-79% 153' 
 Coleman v. Kansas City, St. .J. & 
 C. B. R. Co. 36 Mo. 
 
 App. 476 435-3 
 
 Coleman's App. 62 Pa. 274 573^ 
 
 Coleman's App. 62 Pa. 275 174' 
 
 Collett V. London & N. W. R. Co. 
 
 16 Q. B. 984-.-- 5683 
 
 Collins V. Benbury, 3 Ired. L. 277, 
 
 5 Ired. L. 118- - 51 4^ 
 
 «. Chartiers Valley Gas Co. 
 131 Pa. 143, 6 L. R. A. 
 
 280 286,287 
 
 V. Ewing, 51 Ala. 101 487' 
 
 V. Ewing, 51 Ala. 102 
 
 .- ----480' \ 4848 
 
 v. Groseclose, 40 Ind. 414. 
 
 644^ 647- 
 
 V. Hatch. 18 Ohio, 523 603"' 
 
 Collins V. Howard, 65 N. H. — . . 
 
 403«, 412', 417^ 
 
 V. Larkin, 1 R. I. 219 eOl^^ 
 
 «. Leafey, 124 Pa. 203 144= 
 
 V. New York Cent. & H. R. 
 
 R. Co. 5 Hun, 499, 
 
 affd. 71 N. Y. 609---. 669* 
 V. New York Cent. & H. 
 
 R. R. Co. 5 Hun, 503 6483 
 V. Prentice, 15 Conn. 39 .- 
 
 ....1696, 174* 
 
 V. Selden, L. R. 3 C. P. 498, 
 
 37 L. J. N. S C. P. 233 24^ 
 V. Waltham, 151 Mass. 196 306* ' 
 Collyer v. Pennsylvania R. Co. 
 
 49 N. .L L. 59, 4 Cent. 
 
 Rep. 568 1332, 1463 
 
 Colorado Cent. R. Co. v. Holmes, 
 
 5 Colo. 197 -. 365-^ 
 
 Columbia College v. Lynch, 70 N. 
 
 Y. 440 2043, 2243 
 
 V. Lynch, 70 N. Y. 447, 
 
 448 158^ 
 
 •D. Lynch, 70 N. Y. 448 .-. 158* 
 ®. Thacher, 10 Abb. N. C. 
 
 235.-- 2043 
 
 Columbus V. Hydraulic Woolen 
 
 Mills Co. 33 Ind. 435- 
 
 2915,292', 3379, 4563- 
 
 v. Jaques, 30 Ga. 506 79' 
 
 Columbus & I. C. R. Co. ■». Ar- 
 nold, 31 Ind. 174 145*^ 
 
 Columbus Gas Co. v. Freeland, 
 
 13 Ohio St. 392 
 
 --- 83, 155', 278 
 
 Comerford v. Dupuy, 17 Cal. 310. 593' 
 Commings v. Stevenson, 76 Tex. 
 
 643-- 10^ 
 
 Commonwealth v. Alger, 7 Cush. 
 
 53 3813,468', 4923 
 
 V. Alsrer, 7 Cush. 53, 68... 510' 
 V. Alger, 7 Cush. 53, 82, 104 390' 
 «. Alger, 7 Cush. 53, 86, 96 133 
 
 V. Alger, 7 Cush. 63 3783 
 
 «. Alger, 7 Cush. 71 382' 
 
 v. Alger, 7 Cush. 75- 882'^ 
 
 «. Bailey, 13 Allen, 541--. 
 
 .- 495', 536' 
 
 v. Barber, 143 Mass. 560, 3 
 
 New Eng. Rep. 901 .. 541 « 
 
 «. Beale, 5 Pick. 514 603^ 
 
 V. Bean, 14 Gray, 53-.6038, 6033 
 
 V. Boston, 97 Mass. 555 113' 
 
 V. Breed, 4 Pick. 460 3743 
 
 V. Central Bridge Corp. 12 
 
 Cush. 243, 344 470* 
 
 V. Chapin, 5 Pick. 199, 16 
 
 Am. Dec.386. 3773,3784. 
 
 416-2, 5013, 5131^ 5301 3^ 
 
 531 5 «, 5343, 540^ 5503, 560'-
 
 TABLE OF CASES. 
 
 XXXI 
 
 Commonwealth v. Charlestown, 1 
 
 Pick. 180.. 3791, 405» 
 
 V. Charlestown, 1 Pick. Ib6, 
 
 note l..-dl4\ 5803, rysV", 500^ 
 «». Curtis, 9 Allen, 266 .... 60-^8 
 V. Eliot, 146 Masfi. 5, 5 New 
 
 Eug. Rep. 541 5416 
 
 V. Erie & N. E. R. Co. 27 
 
 Pa. 339 2472 
 
 V. Essex Co. 13 Gray, 247 534^ 
 ■V. Essex Co. 13 Gray, 249 532' 
 V. Goodwin, 122 Mass. 19, 35 13^' 
 V. Gowen, 7 Mass. 378.... 70^ 
 V. Rulings, 129 Pa. 317... 487^ 
 V. Kine:. 150 Mass. 221, 5 
 
 L.'^R. A. 536-... 3728 
 
 V. Labey, 14 Grav, 91 620^ 
 
 V. Low. 3 Pick. 408 236' 
 
 V. Manchester (]\Iass.) 9 L. 
 
 R. A. 236.-4955, 4963 4, 5311 
 V. Manimon. 136 Mass. 456, 
 
 458 536' 
 
 V. Merriam, 14 Pick. 518.. 620^ 
 V. Moorehead, 118 Pa. 344, 
 
 10 Cent. Rep. 611.. 71^ 103* 
 V. Nashua & L. R. Corp. 2 
 
 Gray, 54.. 35', 247^ 
 
 V. Nashua & L. R. Corp. 2 
 
 Gray, 56 70^ 
 
 V. Newbury, 2 Pick. 51... 236* 
 0. Old Colony & F. R. Co. 
 
 14 Gray, 93 247^ 262« 
 
 V. Passmore, 1 Serg. & R. 
 
 217 249 
 
 V. Passmore, 1 Serg. & R. 
 
 219... 2473 
 
 «. Patterson, 138 Mass. 498, 
 
 500 149" 
 
 IJ. Pierce, 11 Gray, 447 620^ 
 
 «. Richardson, 142 Mass. 
 
 71, 2 New Eng. Rep. 
 
 153... 5416 
 
 V. Roxbury, 9 Gray, 451 
 
 378^ 4923 
 
 V. Roxbury, 9 Gray, 451, 
 
 485 841' 
 
 V. Roxbury, 9 Gray, 492 . . 378'^ 
 V. Roxbury,9Gray,526, 527 536' 
 V. Ruggles, 10 Mass. 391 .. 5316 
 V. Stodder, 2 Cush. 562 ... 152'^ 
 V. Tewksbury, 11 Met. 55. 390' 
 V. Tiffany, 119 Mass. 300.. 
 
 496', 532' 6, 5496 
 
 V. Tolman, 149 Mass. 229. 
 
 3L. R. A. 747 471' 
 
 «. Turner, 145 Mass. 296, 5 
 
 New Eng. Rep. 265 ..638' * 
 
 V. Upton, 6 Gray, 476 71* 
 
 T. Vincent, 108 Mass. 441.. 
 
 496', 5013 
 
 ComuKniwealth e. Vincent, 108 
 
 Mass. 441,447 373', 889'' 
 
 V. Vincent, 108 Mass. 446. 532' 
 V. Walden, 8 Cush. 558... 13' 
 
 V. Webb, 6 Rand. 726 478* 
 
 V. Wright, Thach. Cr. Cas. 
 
 211 468' 
 
 Compton V. Hawkins (Ala.) 9 L. 
 
 R. A. 387... 359'. 300*, 565* 
 Concanan v. Boynton, 76 Iowa, 
 
 543. 269' 
 
 Cone V. Hartford, 28 Conn. 863.. 292' 
 Congress & E. Spring Co. v. Ed- 
 gar, 99 U. S. 645, 25 L. 
 
 ed. 487 587', 
 
 6O43, 6O92, 61 95, 6293, 6301 
 Congreve v. Morgan, 18 N. Y. 84 
 
 27*, 110, 113' 
 
 V. Smith, 18N. Y. 79 
 
 523, 1084, 109' 
 
 «. Smith, 18 N. Y. 83 833-' 
 
 Conhocton Stone Road «. Buffalo, 
 N. Y. & E. R. Co. 51 
 
 N. Y. 573 44, 59, 60 
 
 Conklin v. Boyd, 46 Mich. 56... 
 
 235'", 4262- 
 
 Conn V. May, 36 Iowa, 241 644= 
 
 Connecticut, The, 103 U. S. 710, 
 
 26 L. ed. 467-.-. 369' 
 
 Connecticut & P. R. R. Co. v. 
 
 Holton, 33 Vt. 48 241' 
 
 Connehan v. Ford, 9 Wis. 240... 560' 
 Conner v. Paxson, 1 Blackf. 168.. 487' 2 
 Connolly t). Ross, 11 Fed. Rep.342 369- 
 Conrad v. Ithaca, 16 N. Y. 158.. 342* 
 Courow V. Little, 115 N. Y. 887, 
 
 5L. R. A. 693 183^ 
 
 Continental, The, 81 U. S. 14 
 
 Wall. 345, 20 L. ed. 801 369' 
 Contra Costa C. M. R. Co. v. 
 
 Moss, 28 Cal. 323 89'' 
 
 Converse v. Walker, 30 Hun, 596 23* 
 Conway v. Taylor, 66 U. S. 1 
 Black, 603, 17 L. ed. 
 
 191 .479*, 486 
 
 Cook ». Bath, L. R. 6 Eq. 177... 79'' 
 V. Burlington. 30 Iowa, 94, 
 
 6 Am. Rep. 649 397' 
 
 V. Burlington, 80 Iowa, 94, 
 
 36 Iowa, 357 564' 
 
 D. Champlain Transp. Co. 
 
 1 Denio, 91 667 
 
 V. Champlain Transp. Co. 
 
 1 Denio, 96, 97,102... 665' 
 
 «. Hull, 3 Pick. 269 443* 
 
 v. McClure, 58 N. Y. 437, 
 
 17 Am. Rep. 270 394' 
 
 V. Mayor, L. R. 6 Eq. 177. 5793 
 V. Mayor, L. R. 6 Eq. 177- 
 
 179.. 578^^
 
 XXXll 
 
 TABLE OF CASES. 
 
 €ook V. Morea, 33 Ind. 497 622* 
 
 V. Stearns. 11 Mass. 533... 202' 
 Cooke V. Waring, 2 Hurl. & C. 
 
 331 633^ 
 
 V. Waring, 2 Hurl. & C. 
 
 332_ 5951 
 
 Cooley V. Ei^sex, 37 N. J. L. 415. 339" 
 Coolidge V. Dexter. 129 Mass. 167, 
 
 169, note 255^ 
 
 V. Learned, 8 Pick. 504.. .564' ^ 
 V. Williams, 4 Mass. 140_- 495' 
 Coonley v. Albany, 57 Hun, 327. 392^ 
 Cooper V. Hubbuck, 7 Jur. N. S. 
 
 457-- - 458^' 
 
 V. Langway, 76 Tex. 121- . 76« 
 
 V. Wiliiams, 5 Ohio, 391.. 454^ 
 
 Coor ■». Rogers, 97 N. C. 143.... 599» 
 
 Copper V. Dolvin, 68 Iowa, 757.- 270* 
 
 Corby v. Hill, 4 C. B. N. S. 556. 
 
 16'. 203 5, 1504 
 
 V. Hill, 4 C. B. K S. 556, 
 
 567 150 
 
 Corcoran v. Nail or, 6 Mackey, 
 
 580 211' 
 
 Corfield v. Coryell, 4 Wash. C. C. 
 
 371 ..379^ 495« 
 
 Corlett V. Leavenworth, 27 Kan. 
 
 673 1295« 
 
 Corliss V. Smith, 53 Vt. 532-.586^ 625^ 
 Cornelius «. Grant, 7 Sc. Sess. 
 
 Cas. 4 628' 
 
 Corning v. Gould, 16 Wend. 531- 
 
 5765, 5776, 578^ 
 
 v. Lowerre, 6 Johns. Ch. 
 
 439, 2 N. Y. Ch. L. ed. 
 
 178.- - 4773 
 
 V. Troy Iron & N. Factory, 
 
 34 Barb. 485.. 287^ 
 
 V. Troy Iron & Nail Fac- 
 tory, 40 N. Y. 220.... 4565 
 Cortelyou v. Van Brundt, 2 Johns. 
 
 357.. 188« 
 
 V. Van Brundt, 2 Johns. 
 
 362 378^ 379' 
 
 Cotes V. Davenport, 9 Iowa, 227. 305^ 
 Cotterill v. Starkey, 8 Car. & P. 
 
 691 136* 
 
 Cotton «. Pocasset Mfg. Co. 13 
 
 Met. 429- 428'' 
 
 Cottrill V. Myrick, 12 Me. 222.-- 
 
 53r, 5325 
 
 Couch V. Steel, 3 El. & Bl. 402.. 662^ 
 Coupland v. Hardingham, 3 Camp. 
 
 398 105^ 
 
 Coursin's App. 79 Pa. 220 201* 
 
 Couts V. Neer. 70 Tex. 468 28* 
 
 Covert V. O'Conner, 8 Watts, 477. 404' 
 Covington v. Bryant, 7 Bush, 248 100^ 
 Cowdrey v. Woburn, 136 Mass. 
 
 409 4545 
 
 Cowell V. Thayer, 5 Met. 253 
 
 .167», 419' 
 
 Cowles V. Balzer, 47 Barb. 562.. 
 
 5942, 596' 
 
 V. Kidder, 24 H. H. 364... 
 
 433', 545'» 
 
 Cowley ». Sunderland, 6 Hurl. & 
 
 N. 565 583' 
 
 Cowling 'B. Higginson, 4 Mees. & 
 
 W. 245 -...243', 265* 
 
 Cox V. Burbridge, 13 C. B. N. S. 
 
 430 6O75 
 
 V. Burbridee, 13 C. B. N. S. 
 
 438, 32 L. J. N. S. C. 
 
 P. 89 588', 6O52 
 
 i\ Matthews, 1 Vent. 237.. 175' 
 ». Murphy, 82 Ga. 623 .... 605' 
 V. Russell, 6 Barn. & C. 
 
 566 ...259«, 260 
 
 V. State, SBlackf. 193 
 
 3765«, 377' 
 
 Coxe V. Robbins, 9 N. J. L. *384 
 
 591', 592'', 5935 
 
 Crabtree v. Baker, 75 Ala. 91. 51 
 
 Am. Rep. 424.... 290', 3045 
 Crafter v. Metropolitan R. Co. L. 
 
 R. 1 C. P. 300 139 
 
 Cragin v. New York Cent. R. Co. 
 
 51 N. Y. 61. 639« 
 
 Craig V. Rochester City «fc B. R. 
 
 R. Co. 39N. Y. 404.. 93' 
 
 Grain v. Fox, 16 Barb. 184 578* 
 
 Crandall v. Goodrich Transp. Co. 
 
 16 Fed. Rep. 75. 654' 
 
 Crane v. Winsor, 2 Utah, 248 446* 
 
 Craven v. Rose, 3 Rich. L. 72... 577*^ 
 Crawford v. Allegheny (Pa.) 23 
 
 W. N. C. 141 567' 
 
 V. Delaware, 7 Ohio St. 459 82' 
 1). Parsons, 63 N. H. 438.. 572' 
 V. Rambo, 44 Ohio St. 279, 
 
 4 West. Rep. 446. 295", 461' * 
 V. The Wells City, 38 Fed. 
 
 Rep. 47 .- 156' 
 
 Crawfordsville v. Bond, 96 Ind. 
 
 236. 
 
 .290^ 312', 321'. 326*, 327'^ 
 Crawshaw «. Sumner, 56 Mo. 523 233' 
 Creed «. Hartmann, 29 N. Y. 591 
 
 136', 333* 
 
 Creigliton t\ Kaweah Canal & I. 
 
 Co. 67 Cal. 221. 287- 
 
 Cressey v. Northern R. Co. 59 N. 
 
 H. 564 664" 
 
 Crichton v. CoUery, Ir. R. 4 C. 
 
 L. 508 --. 498* 
 
 Crittenden v. Wilson, 5 Cow. 165 
 
 270*, 430' 
 
 Crocheron v. North Shore S. I. 
 
 F. Co. 56 N. Y. 656. 138'
 
 TABLE OF CASES, 
 
 XXXlll 
 
 Crocker©. Knickerbocker Ice Co. 
 
 92 N. Y. ess 127-» 
 
 •Crogan v. Schiele, 53 Conn. 186, 
 
 1 New Eng. Rep. 311 
 
 ....25", 26^ 73^ 118', 122' « 
 Crogate v. Morris, Brovvnl. 197.. 644^ 
 Crolley v. Minneapolis & St. L. 
 
 K. Co. 30 Minn. 541. 487^ 
 Crommelin v. Coxe, 30 Ala. 318- 79' 
 Cronin v. People, 82 N. Y. 318.. 152-' 
 Cronkhite v. Croukhite, 94 N. Y. 
 
 323 182', 184« 
 
 Crooker v. Bragg, 10 Wend. 260 441^ 
 Cropper v. Matthews, 2 Sid. 127. 619^ 
 Crosland v. Pottsville, 126 Pa. 511 470^ 
 Cross V. Lewis, 2 Barn, cfe C. 586 178 
 T. Morristown, 18 N. J. Eq. 
 
 305... - 71' 
 
 V. Morristown, 18 IST. J. Eq. 
 
 311 71" 
 
 Orossley v. Lightowler, L. R. 2 
 
 Ch. App. 478 580^ 
 
 «. Lightowler, L. R. 2 Cb. 
 
 App. 482 571' 
 
 Crouch V. Charleston & S. R. Co. 
 
 21 S. C. 495 472 
 
 V. London &N. \V. R. Co. 
 
 14 C. B. 291 133' 
 
 Crowell V. Sonoma County, 25 
 
 Cal. 315 34P 
 
 Crowhurst v. Amersham Burial 
 
 Board, L. R. 4 Exch. 
 
 Div. 5. 1235 
 
 Cubit V. O'Dett, 51 Mich. 347.... 311'* 
 V. O'Dett, 51 Mich. 350... 635" 
 Cubitt V. Porter, 8 B irn. & C. 257 
 
 209- ^ 213 
 Cuflf V. Newark & N. Y. R. Co. ' 
 
 35 N. J. L. 17.. 1493 
 
 Culver 0. Streator, 130 111. 238, 6 
 
 L. R. A. 270 335' 
 
 Cumberland & O. C. Corp. v. 
 
 Portland, 62 Me. 505. 351^ 
 Cumberland Valley R. Co. v. 
 
 Hughes, 11 Pa. 141... 252' 
 Cummings?). Barrett, 10 Cush. 186 455- 
 V. Riley, 52 N. H. 368.... 622^ 
 V. St. Louis, 90 Mo. 259, 7 
 
 West. Rep. 274 78' 
 
 Cummins ti. Seymour, 79 Ind. 491, 
 
 41 Am. Rep. 618 
 
 312', 327-, 3282 
 
 Cunningham ®. Cambridge Sav. 
 
 Bank, 138 Mass. 480 
 
 413,49' 
 
 Curling v. Wood, 16 Mees. & W. 
 
 628 5663 
 
 Curran v. Boston (Mass.) 8 L. R, 
 
 A. 243 347' 
 
 ». Louisville, 83 Ky. 628.. 580* 
 
 Currier «. West Side E. P. Co. 6 
 
 Blatchf. 487 76' 
 
 Curry v. Ut. Sterling, 15 111. 320. 184' 
 
 Curtis «. Angier, 4 Gray, 547 188'^ 
 
 V. Eastern R. Co. 98 Mass. 
 
 428. 349' 
 
 V. Eastern R. Co. 98 Mass. 
 
 428, 431 348* 
 
 V. Francis, 9 Cush. 437... 573'' 
 V. Keesler, 14 Barb. 511.. 
 
 ....1883, 405', 5503 
 
 V. La Grande Water Co. 
 
 (Or.)lOL. R. A. 484.. 445-» 
 V. Noonan, 10 Allen, 406.. 
 
 188', 571' 
 
 V. Rochester & S. R. Co. 
 
 18 N. Y. 534 155», 612' 
 
 Curtiss V. Ayrault, 47 N. Y. 73.. 168* 
 V. Ayrault, 47 N. Y. 75... 187 
 V. Ayrault, 47 N. Y. 79... 
 
 205-, 217', 241'' 
 
 «. White, Clarke, Ch. 389. 2203 
 Cusbing V. Adams, 18 Pick. 110. 2443 
 v. Bedford, 125 Mass. 526. 
 
 319', 336-3,853' 
 
 V. Bedford, 125 Mass. 528. 3343 
 Cusick V. Adams, 115 N. Y. 55. 
 
 23', 263, 361« 
 
 Cults V. Hussey, 15 Me. 237 378* ' 
 
 D. 
 
 Dalay v. Savage, 145 Mass. 38, 4 
 
 New Eng. Rep. 863.. 
 
 44', 49', 53'*, 63, 73' 
 
 Dalton V. Angus, L. R. 6 App. 
 
 Cas. 740 
 
 V. Angus, L.R. 6 App. Cas. 
 
 829 
 
 V. Bowker, 8 Nev. 190.... 
 
 V. Denton, 1 C. B. N. S. 672 566* 
 
 Damp V. Dane, 29 Wis. 428 481' 
 
 Dana v. .Jackson Street Wharf 
 
 Co. 31 Cal. 120 378'2' 
 
 Dauaher ■«. Brooklyn, 51 Hun, 563, 
 
 affirmed, 119 N.Y. 241, 
 
 7L. R. A. 592.... 3083 
 Daniel v. Metropolitan R. Co. L. 
 
 R. 3C. P. 216. 
 
 V. Metropolitan R. Co. L. 
 
 R. 5 H. L. 45, 40 L. J. 
 
 N. S. C. P. 121 
 
 Daniel Ball, The, 77 U. S. 10 
 
 Wall. 557, 19 L.ed. 999 
 
 370^ 3773, 4033, 406 
 
 The, 77 U. S 10 Wall. 563, 
 
 19 L. ed. 1001 3703 
 
 199 
 
 232 
 445' 
 
 309' 
 1393 
 
 24* 
 
 C
 
 XXXIV 
 
 TABLE OF CASES. 
 
 Daniels v. Citizens Sav. Inst. 127 
 
 Mass. 534.- 1673, 419^ 
 
 V. Clegg, 28 Mich. 33, 42.. dP 
 
 V. Lebanon, 58 N. H. 284.127-* ' 
 
 V. Potter, 4 Car. & P. 262. 61 1^ 
 
 Dannaker v. Riley, 14 Pa. 436... 232'^ 
 
 Dant V. Dist. of Columbia, 91 U. 
 
 S. 557, 23 L. ed. 446.. 342' 
 Danville, H. & W. R. Co. v. 
 
 Com. 73 Pa. 38 73^ 
 
 Dargan^. Mobile, 31 Ala. 469.-335' » 
 
 Dark v. Johnston, 55 Pa. 164 182^ 
 
 Darker «. Beck (Sup. Ct.) 32 N. 
 
 Y. S. R. 193 1622 
 
 Darling v. Bangor. 68 Me. 110... 329^ 
 V. Bang.r, 68 Me. 112 .-. 330' 
 Darlington v. Painter, 7 Pa. 473- 
 
 2633, 425, 426', 428^ 
 
 Darwin v. Upton, 2 Wm. Saund. 
 
 175 178 
 
 Dauenehauer v. Devine, 51 Tex. 
 
 480_- --..211^ 2122 
 
 Davenport v. Lamson, 21 Pick. 72 238^ 
 V. Ruckman, 10 Bosw. 20, 
 
 37 N. Y. 568 .. 148^ 
 
 V. Ruckman, 37 N. Y. 568 
 
 441, 52^, 1102, 115', 342', 3432 
 Davenport & N. W. R. Co. v. 
 Renwick, 103 U. S. 
 
 180, 26L. ed. 51 - 386^ 
 
 Davids ». Harris, 9 Pa. 503 220^ ^ 
 
 Davidson v. Boston & M. R. Co. 
 
 3 Cush. 91-105 381 
 
 V. Hutchinson (N. J.) 18 
 
 Atl. Rep. 977 299-* 
 
 V. Michigan Cent. R. Co. 
 
 49 Mich. 431 636^ 
 
 Davies v. 3Iarshall, 9 Week. Rep. 
 
 866.-.- 1872 
 
 V. Williams, 16 Q. B. 546. 6482 
 Davis V. Amer. Society for Prev. 
 Cruelty to Animals, 6 
 Daly, 85, 16 Abb. Pr. 
 
 N. 8. 78- --.. 775 
 
 V. Campbell, 23 Vt. 236... 616' 
 «. Central Congregational 
 Society, 139 Mass. 367, 
 
 371 5683 
 
 «. Fuller, 12 Vt. 178 2872 
 
 V. Getchell, 50 Me. 602.... 443« 
 V. Getchell, 50 Me. 602, 79 
 Am. Dec. 636, and 
 
 note, 638-645.. 441^ 
 
 V. Jenkins, 5 Jones, L. 
 
 290 540' 
 
 1). Londgreen, 8 Neb. 43.. 299^ 
 V. New York, 14 N. Y. 506 
 
 --702, 72^ 2473 
 
 V. New York, 14 N. Y. 
 
 524 103, 751 
 
 ! Davis V. Reamer, 104 Ind. 318, 3 
 
 West. Rep. 317 567* 
 
 V. The Seneca, Gilp. 10, 34 371* 
 
 «. The Seneca, Gilp. 28 370* 
 
 V. Winslow, 51 Me. 364, 81 
 
 Am. Dec. 573-. 
 
 70, 377*, 402', 404«, 4122, 568* 
 Dawson v. Manchester, S. & L. 
 
 R. Co. 7 Hurl. & N. 
 
 1037 155* 
 
 Dawtry v. Huggins, Clayt. 32, pi. 
 
 56 594* 
 
 Day V. Allender, 22 Md. 511 
 
 237«, 564' 3 
 
 V. Mt. Pleasant, 70 Iowa, 
 
 193- 119* 
 
 V. Stetson, 8 Greenl. 370- . 485* 
 v. Walden, 46 Mich. 575. .580-* 
 Dayton v. Pease, 4 Ohio St. 80.. 342' 
 Dean v. Chicago & N. R. Co. 43 
 
 Wis. 308 635'2 
 
 V. Clayton, 7 Taunt. 489-. 
 
 15, 543', 628' 
 
 V. McCarty, 2 U. C. Q. B. 
 
 448 645» 
 
 Deane v. Randolph, 132 Mass. 
 
 475.... 334*, 336', 3413, 351 
 Deansville Cemetery Asso. , Be, 66 
 
 N. Y. 569, 5 Hun, 482 89* 
 Dearth v. Baker, 22 Wis. 73-586«, 607* 
 De Bary Baya Merchants Line v, 
 
 Jacksonville, T. & K. 
 
 W. R. Co. 40 Fed. 
 
 Rep. 392-- 568^ 569' 
 
 Debolt??. Carter, 31 Ind. 355 236* 
 
 De Camp v. Sioux City, 74 Iowa, 
 
 393. -- --. 6603 
 
 Decatur Gas Light & C. Co. v. 
 
 Howell, 93 111. 19.-.. 288* 
 Decker v. Baltimore & N. Y. R. 
 
 Co. 1 Inters. Com. 
 
 Rep. 434, 30 Fed. Rep. 
 
 733 - 466' 
 
 V. Baylor, 133 Pa. 168 357» 
 
 V. Gammon, 44 Me. 322... 
 
 -...586*, 587', 593' 
 
 Deerfield v. Arms, 17 Pick. 41, 28 
 
 Am. Dec. 276..- 
 
 360', 396', 397** 
 
 V. Conn. River R. Co. 144 
 
 Mass. 625, 4 New Eng. 
 
 Rep. 18 9762, 1768. 239* 
 
 Defer v. Detroit, 67 Mich. 346, 11 
 
 West. Rep. 530 -.-2932, 306'' 
 Delahoussaye i). Judice, 13 La. 
 
 Ann. 587 --..2953, 4255 
 
 Delaney v. Errickson, 11 Neb. 
 
 533 5943 
 
 Delaplaine v. Chicago & N. W. 
 
 R. Co, 43 Wis. 214.. 359*
 
 TABLE OF CASES. 
 
 XXXV 
 
 Delaware, L. & W. R. Co. «. 
 
 Central Stock Yard & 
 
 T. Co. 43 N. J. Eq. 
 
 71, 9 Cent. Rep. 111.. 88^ 
 
 V. Napheys, 90 Pa. 135.i;39\ 147' 
 
 V. Salmon, 39 N. J. L. 300 
 
 6.'54i2 
 
 V. Salmon, 39 N. J. L. 311 664' 
 V. Toffey, 38 N. J. L. 525. 363^ 
 Delger v. St. Paul, 14 Fed. Rep. 
 
 567..-. -.342', 343= 
 
 Delhi V. Youmans, 45 N. Y. 362 
 
 280, 2b3^ 284 
 
 V. Youmaus, 50 Barb. 316- 
 
 320 - 123 
 
 Delory v. Canny, 144 Mass. 445, 
 
 4 New Eng. Rep. 258- 130^ 
 
 De Lovio v. Bolt, 2 Gall. 398 
 
 370^ 371* 
 
 De Luze v. Bradbury, 25 N. J. 
 
 Eq. 70- 186^ 2412^ 
 
 Delzell V. Indianapolis «fe C. R. 
 
 Co. 32 lud. 45---2.52^ 488^ 
 Dempsey v. Kipp, 61 N. Y. 462-. 
 
 --.182', 1848 
 
 Den V. Jersey Co. 56 U. S. 15 
 How. 426, 14 L. ed. 
 
 757 494= 
 
 De Necochea v. Curtis, 80 Cal. 
 
 397 4488, 4492 
 
 V. Curtis, 80 Cal. 404 446'' 
 
 Denning v. Roome, 6 Wend. 651. 2878 
 Dennis v. Huyck, 48 Mich. 620-. 635" 
 
 Denny v. Correll, 9 Ind. 72 594^' 
 
 Denton v. Leddell, 23 N. J. Eq. 
 
 64 2413 
 
 Denver v. Bayer, 7 Colo. 113 82' 
 
 V. Capeli, 4 Colo. 25, 34 
 
 Am. Rep. 63... 330' 
 
 V. Dean, 10 Colo. 375 342' 
 
 V. Dunsmore, 7 Colo. 328. 
 
 342', 343= 
 
 V. Rhodes, 9 Colo. 554..-. 
 
 -. 8046, 305«, 
 
 324', 328*. 3302, 33^1^ 3421 
 Denver & R. G. R. Co. v. Harris, 
 122 U. S. 597, 30 L. ed. 
 
 1146 6573 
 
 Dering v. Earl of Winchelsea, 1 
 
 Cox, Cas. 348 226 
 
 Dermont v. Detroit, 4 Mich. 435- 329^ 
 Derrickson v. Springer, 5 Harr. 21 234' 
 Derry v. Flitner, 118 Mass. 131 -. 107^ 
 Des Plaines v. Poyer, 123 111. 348, 
 
 12 West. Rep. 760..-. 9-* 
 Detroit v. Beecher, 75 Mich. 454. 
 
 122», 595« 
 
 V. Blackeby, 21 Mich. 84.- 3413 
 D. Corey, 9 Mich. 165.. 114", 333' 
 V. Corey, 9 Mich. 165, 184 338' 
 
 Detroit City R. Co. v. Mills 
 
 (Mich.) 4 Harvard Law 
 
 Rev. 260 251» 
 
 Devlin v. Wabash, St. L. & P. R. 
 
 Co. 87 Mo. 545, 4 
 
 West. Rep. 54 137* 
 
 Devonshire v. Eglin, 14 Beav. 
 
 530 183» 
 
 Dewein v. Peoria, 24 111. App. 
 
 396... 333» 
 
 Dewey v. Leonard, 14 Minn. 153 
 
 135^ 642*, 645* 
 
 Dexter v. McCready, 54 Conn. 
 
 171, 2 New Eng. Rep. 
 
 838 611 
 
 v. Providence Aqueduct 
 
 Co. 1 Story, 387 .... 280' 
 V. Tree, 117 111. 532, 5 West. 
 
 Rep. 897 1803, 234-*, 237* 
 
 Diamond v. Northern Pac. R. 
 
 Co. 6 Mont. 580 648* 
 
 Diamond Match Co. v. New 
 
 Haven, 55 Conn. 510, 
 
 6 New Eng. Rep. 174. 315 
 Diamond State Iron Co. v. Giles 
 
 (Del.) 9 Cent. Rep. 577 
 
 -..20^ 361* 
 
 Dickey v. Maine Teleg. Co. 46 
 
 Me. 483. 251' 
 
 Dickinson v. New York, 28 Hun, 
 
 256 - -.-. 333* 
 
 V. Whiting, 141 Mass. 414, 
 
 2 New Eng. Rep. 356. 242» 
 p. Worcester, 7 Allen, 19-. 
 
 1473, 296«, 3022, 3035 
 
 Dickson «. Burnhara, 14 U. C. Ch. 
 
 594 545-» 
 
 V. HoUister, 123 Pa. 421 .- 
 
 27*, 115', 130* 
 
 V. McCoy, 39 N. Y. 400 .. . 
 
 6076, 6103* 
 
 Diedrich v. Northwestern U. R. 
 
 Co. 43 Wis. 248. .1845, 359* 
 
 Dill V. Wareham, 7 Met. 438 495' 
 
 Dillard v. Moore, 7 Ark. 166 6343 
 
 Dilling V. Murray, 6 Ind. 324, 63 
 
 Am. Dec. 385 425*, 451* 
 
 V. Murray, 6 Ind. 326 411* 
 
 Dillman v. Hoffman, 38 Wis. 559 
 
 17P, 576^ 577* 
 
 Dillon V. Acme Oil Co. 49 Hun, 
 
 565 80*, 275 
 
 Dilworth's App. 91 Pa. 247 10* 
 
 Dimes v. Petley, 15 Q. B. 276... 469^ 
 Dinwiddle v. State, 103 Ind. 101, 
 
 1 West. Rep. 138 62G» 
 
 Dist. of Columbia v. Armes, 107 
 
 U. S. 519, 27 L. ed. 618 342' 
 V. Baltimore & P. R. Co, 
 
 1 Mackey, 316, 317... 39*
 
 XXXVl 
 
 TABLE OF CASES. 
 
 Ditchett V. Spuytea Duyvil & P. 
 M. R. Co. 67 N. Y. 
 425 521 
 
 Diveny v. Elmira, 51 N. Y. 506. 343'^ 
 
 Dixon V. Baker, 65 111. 518 330^ 
 
 V. Bell, 5 Maule & S. 198, 
 
 199 - 367' 
 
 ^.Wilkinson,2McArth. 425 198^ 
 
 Doane v. Badger, 12 Mass. 65, 70 158' 
 
 i>. Willcutt, 5 Gray. 328..- 378'' 
 
 Dobiecki v. Sharp, 88 N. Y. 203.. 19^ 
 
 Dockfrty v. Hutson (Ind.) 25 N. 
 
 E. Rep. 144 .616^ 632' 
 
 Dodd V. Holme. 1 Ad. & El. 493 
 
 38^ 192, 199^ 200^ 
 
 Dodge «. Essex County Comrs. 3 
 
 Met. 380_.. 266' 
 
 t). McClintock,47N.H.386 181' 
 v. Pennsylvania R. Co. 43 
 
 N. J. Eq. 351, 10 Cent. 
 
 Rep. 655 738, jcP 
 
 V. Stacy, 39 Vt. 558 577'= 
 
 Dodson V. Mock, 4 Dev. & B. L. 
 
 146 628' 
 
 Doe V. Beebe, 54 U. S. 13 How. 
 
 25, 14L. ed. 35 
 
 372' ^ 378\ 379' » «, 396'*, 399* 
 Doenner v. Tynan, 38 How. Pr. 
 
 176.. 2473 
 
 Doerbaum v. Fischer, 1 Mo. App. 
 
 149.. 302' 
 
 Doggett V. Richmond & D. R. 
 
 Co. 78N. C. 305.. 6593, 666^ 
 Doherty v. Braintree, 148 Mass. 
 
 495. 497 351 
 
 «. Waltham, 4Gray, 596.. 368' 
 Dolfinger v. Fishback, 12 Bush, 
 
 474 6O42, 607^ 
 
 Dolliff V. Boston & M. R. Co. 68 
 
 Me. 173 172* 
 
 «. Boston & M. R. Co. 68 
 
 Me. 176 166' 
 
 Dolph V. Ferris, 7 Watts & S. 367 59P 
 Donahoe v. Wabash, St. L. & P. 
 
 R. Co. 83 Mo. 560.... 5^ 
 Donaldson v. Wilson, 60 Mich. 
 
 86, 1 Am. St. Rep. 
 
 487, and note 19=* 
 
 Donohue v. New York. 3 Daly, 65 330' 
 Donovan v. McAlpin, 85 N. Y. 188 440^ 
 
 Doody V. Vaughn, 7 Neb. 28 481' 
 
 Dooley «. Sullivan, 112 Ind. 451, 
 
 11 West. Rep. 816.310% 333^ 
 Doolrttle ■». Broome Co. 18 N. Y. 
 
 155. 4778 
 
 Doorman v. Jenkins, 2 Ad. <& El. 
 
 256 613' 
 
 Dority v. Dunning, 78 Me. 381, 3 
 
 New Eng. Rep. 41 
 
 105* 427«, 5735 
 
 224* 
 480= 
 376= 
 
 4753 
 
 534^ 
 
 47a« 
 
 68^ 
 136^ 
 
 Dorman v. Bates Mfg. Co. 82 Me. 
 
 438 .16r» 
 
 Dorrity v. Rapp, 72 N. Y. 307... 
 
 199'^*, 200% 201' 
 
 Dorsey v. St. Louis, A. & T. H. 
 
 R. Co. 58 111. 67 8212* 
 
 V. St. Louis, A. & T. H. R. 
 
 Co. 58 111. 68-. ..2045, 
 
 Doty ?j. Graham, 5 Pick. 487 
 
 V. Strong, 1 Pin. (Wis.) 316 
 Dougan v. Cham plain Transp. 
 
 Co. 56 N. Y. 1-..138, 138' 
 Dougherty v. Bunting, 1 Sandf. 1 
 
 ....75*, 
 
 Doughty V. Conover, 42 N. J. L. 
 
 193 
 
 Douglass V. State, 4 Wis. 387 
 
 Dovastonv. Payne, 2 Smith, Lead. 
 
 Cas. *205, note. 
 
 Dowlingi). Allen, 74 Mo. 13 
 
 V. Hennings, 20 Md. 179.. 
 
 233*, 577* 
 
 Downing v. More, 13 Colo. 316.. 448*^ 
 Doyle V. Chicago, St. P. & K. C. 
 
 R. Co. 77 Iowa, 607, 
 
 4L. R. A. 420 143 
 
 Drake v. Chicago, R. I. & P. R. 
 
 Co. 70 Iowa, 59 
 
 V. Earhart (Idaho) 23 Pac. 
 
 Rep. 541. 
 
 v. Hamilton Woolen Co. 
 
 99 Mass. 579, 581 
 
 V. Hamilton Woolen Co. 
 
 99 Mass. 580 424» 
 
 «. Hudson River R. Co. 7 
 
 Barb. 508 .728, 
 
 V. Mount, 33 N. J. L. 441. 
 Draper v. Mackey, 35 Ark. 497.. 
 
 Drew V. Gant, 1 br. 197 
 
 V. Gaylord Coal Co. (Pa.) 
 
 3 Cent. Rep. 389-.137^ 
 
 V. Hilliker, 56 Vt. 641 .... 
 
 Drewett v. Sheard, 7 Car. & P. 
 
 465 188-, 
 
 Driscoll V. Newark & R. L. »& C. 
 
 Co. 37 N. Y. 637 
 
 Drucker v. Manhattan R. Co. 106 
 
 N.Y. 157, 8 Cent. Rep. 
 
 66 
 
 Dudley v. Camden «& P. Ferry 
 
 Co. 42 N. J. L. 25... 
 
 ...488•-^ 490-^3*, 
 
 «. Kennedy, 63 Me. 465 — 
 
 79=3. 1265, 4753 
 
 Duffies V. Judd, 48 Iowa, 256 595^ 
 
 Duffy v. Dubuque, 63 Iowa, 171, 
 
 50 Am. Rep. 743 125= 
 
 Dufour V. Stacey (Ky.) 14 S. W. 
 
 Rep. 48 487« 
 
 Duinneen v. Rich, 22 Wis. 550, 558 181' 
 
 295' 
 
 448^ 
 455= 
 
 935 
 
 3633 
 
 79' 
 484' 
 
 647' 
 5358 
 
 578* 
 
 235* 
 
 93' 
 
 491'
 
 TABLE OF CASES. 
 
 XXXVll 
 
 Duke of Devonshire v. Lodge, 7 
 
 Barn. & C. 36 537 
 
 Dumont v. Kellogg, 29 Mich. 420 441^ 
 V. Kellogg, 29 Mich. 425 .. 41 P 
 Dunbar v. Boston, 112 Mass. 75.. 335" 
 Duncomb's Case, Oro. Car. 306.. 68^ 
 Dundas v. Lansing, 75 Mich. 499, 
 
 5L. R. A. 143. 128' 
 
 Dundy «. Chambers, 23 111. 370. . 486" 
 V. Chambers, 23 111. 373.. . 483^ 
 Dunham v. Lamphere, 3 Gray, 
 
 208.271 536'' 
 
 Dunklee v. Wilton R. Co. 24 N. 
 
 H.489 
 
 166', 168'*, 172^ ^, 574", 576' 
 Dunlap V. Snyder, 17 Barb. 561. 627^ 
 V. Wagner. 85 Ind. 529, 44 
 
 Am. Rep. 42 656% 657^ 
 
 V. Yoakum, 18 Tex. 582 .. 480' 
 Dunn V. Hannibal & St. J. R. 
 
 Co. 68 Mo., 268 639« 
 
 Dunning v. Bird, 24 111. App. 270 OSS'* 
 Durant v. Palmer, 29 N. J. L. 544 
 
 .45^ 48', 4^^ 5P \ 114', 614 
 Durel V. Boisblanc, 1 La. Ann. 
 
 407.... 166' 
 
 Durham ■». Musselman, 2 Blackf. 
 
 96,18 Am. Dec.133. 597', 598' 
 
 Durkin v. Troy, 61 Barb. 437 129'' 
 
 Dusenbury v. Mutual Teleg. Co. 
 
 11 Abb. N. C. 440-.-. 97« 
 Dutton V. Strong, 66 U. S. 1 
 B]ack,"23, 17 L. ed. 29 
 ..359', 478' 3, 559*, 563'^ ^4 5 
 Dwinel «. Barnard, 28 Me. 554.. 
 
 403^ 404« 
 
 v. Veazie, 44 Me. 167 
 
 403^ 4046, 4132 
 
 V. Veazie, 44 Me. 167, 175. 
 
 ...80^ 47P 
 
 V. Veazie, 50 Me. 479 413^ 
 
 Dyer v. Depui, 5 Whart. 584.... 571' 
 V. St. Paul, 27 Minn. 457. 88' 
 V. Sanford, 9 Met. 395.... 
 
 ..187' 3 4, 201^571'^ 578"«8 
 Dygert v. Bradley, 8 Wend. 469. 610"^ 
 v. Schenck, 23 Wend. 446. 
 
 110, 131'-, 247^ 250' 
 
 V. Schenck, 23 Wend. 448. 71^ 
 
 E. 
 
 Eagle. The, 75 U. S. 8 Wall. 15, 
 
 19L. ed. 365 370 
 
 Eakin v. Brown, 1 E. D. Smith, 
 
 26 149^ 273^ 
 
 Earhart o. Youngblood, 27 Pa. 331 
 
 006\ 617^ 6193 
 
 Earl V. Beadleston, 10 Jones & S. 
 
 294 398, 233' 
 
 V. DcHart, 12 N. -J. Eq. 280 
 
 ....303', 426» 
 
 V. De Hart, 12 N. J. Eq. 
 
 2K0, 287 476* 
 
 V. VanAlstine, 8 Barb. 630.58?' * 
 Earl of Sandwich ». Great North- 
 ern R. Co. L. R. 10 
 
 Ch. Div. 707 457* 
 
 East End St. R. Co. v. Doyle, 88 
 
 Tenn. 747... 251^ 
 
 Eastern R. Co. v. Allen, 135 Mass. 
 
 13.. 550« 
 
 Eastham v. Anderson, 119 Mass. 
 
 526 540» 
 
 East Hampton v. Kirk, 6 Hun, 257 
 
 378', 393' 
 
 Eastman v. Amoskeag Mfg. Co. 
 
 44 N. H. 144 55 
 
 V. Meredith, 36 N. H. 284. 
 
 31P, 830', 337' 
 
 v. Meredith, 30 N. H. 284, 
 
 297-300... 3393 
 
 V. Meredith, 36 N. H. 289- 
 
 294 340', 344'» 
 
 «. Meredith, 36 N. H. 295. 345' 
 V. St. Anthony Falls Water 
 
 Power Co. 43 Minn. 
 
 60-..- 395*6 
 
 V. Sanborn, 3 Allen, 594.. 636'' 
 East Omaha Land Co. ». .Jeffries, 
 
 40 Fed. Rep. 386 395' 
 
 Easton v. Pickersgill, 55 N. Y. 315 88' 
 East St. Louis & C. R. Co. v. Eis- 
 
 entraut (III.) 24 N. E. 
 
 Rep. 760-.. 298" 
 
 East Tennessee, V. & G. R. Co. 
 
 V. Hull, 88 Tenn. 33.. 3633 
 Eaton V. Boston, C. & M. R. Co. 
 
 51 N. H. 504.29P, 432S4355 
 V. Boston, C. & M. R. Co. 
 
 51 N. II. 504, 510.... 4542 
 Eberhart ». Reister, 96 Ind. 478. 630* 
 
 Ebner v. Estichter, 19 Pa. 19 577® 
 
 Eckert v. Long Island R. Co. 43 
 
 N. Y. 503.. 5* 
 
 Eddy «. Chase, 140 Mass. 471, 1 
 
 New Eng. Rep. 573.. 
 
 ..550«, 578* 
 
 V. St. Mars, 53 Vt. 463.... 398" 
 Eddystone, Tlie, 33 Fed. Rep. 925 370» 
 Edgerton v. New York & H. R. 
 
 Co. 39 N. Y. 227..-. 147* 
 Edmondson v. Moberly, 98 Mo. 
 
 523 326S 327« 
 
 Edmund's App. (Pa.) 6 Cent. Rep. 
 
 433... - 205* 
 
 Edmundson v. Pittsburgh, M. & 
 
 T. R. Co. Ill Pa. 316 114>
 
 XXXVlll 
 
 TABLE OF CASES. 
 
 Edson V. Weston, 7 Cow. 278 490* 
 
 Edwards v. New York & H. R. 
 Co. 98 N. Y. 245.-.. 
 
 44, 48^, 53, 68^ 
 
 «. New York & H. R. Co. 
 
 98 N. Y. 247 49' 
 
 «. New York & H. R. 
 
 Co. 98 N. Y. 248.... 113 
 Edwardsville R. Co. v. Sawyer, 
 
 92 111.377 943 
 
 Ehrgott V. New York, 96 N. Y. 
 
 264. 
 
 1072, 310S 342', 3432, 659' 
 Eichels v. Evansville St. R. Co. 
 
 78Ind. 261 ...93*, 248^ 
 
 Elder v. Burrus, 6 Humph. 358.. 
 
 3773, 380^ 
 
 ®. Burrus, 6 Humph. 358, 
 
 366-... 389^ 
 
 Eldred, Re, 46 Wis. 530, 541.. 75*, 475=* 
 Elgin Hydraulic Co. v. Elgin, 74 
 
 111. 433 3273 
 
 V. Kimball, 90 111. 356..-- 310"^ 
 Elias V. Sutherland, 18 Abb. N. 
 
 C. 126 247* 
 
 Elizabeth City Academy v. Lind- 
 say, 6 Ired. L. 476, 45 
 
 Am. Dec. 500 487^ 
 
 Elizabethport & N. Y. Ferry Co. 
 v. United States, 5 
 
 Blatchf. 198 481^ 
 
 Elizabethtown & P. R. Co. ■». 
 
 Thompson, 79 Ky. 52. 94' 
 Elizabethtown, L. & B. S. R. Co. 
 «. Combs, 10 Bush, 
 
 382 - 82' 2 
 
 Elliot V. Fitchburg R. Co. 10 
 Cush. 191.57Am. Dec. 
 85-... 3553, 357% 409', 441^5 
 V. Fitchburg R. Co. 10 
 
 Cush. 193 442«, 455^ 
 
 ». Fitchburg R. Co. 10 
 
 Cush. 194 443' 
 
 Elliotts. Fair Haven, 32 Conn. 579 
 
 93*, 2482 
 
 ®. Philadelphia, 75 Pa. 347 335^ 
 1). Pray, 10 Allen, 378, 87 
 
 Am. Dec. 653 19^, 566^ 
 
 v. Rhett, 5 Rich. L. 405, 
 
 421 157» 
 
 V. Rhett, 5 Rich. L. 405, 
 
 418, 419 1872 
 
 V. Rhett, 5 Rich. L. 405, 37 
 Am. Dec. 750, and 
 
 note, 751-768_-. 166' 
 
 «. Stewart, 15 Or. 259.... 383^ 
 Ellis V. American Academy of 
 
 Music, 120 Pa. 608.743, 247^ 
 
 V. Carey, 30 Ala. 725 
 
 ....403^ 405*, 406' 
 
 Ellis «. Duncan, 21 Barb. 230, 
 affd. 26 How. Pr. 601. 
 
 2802, 300^ 
 
 V. Hilton, 78 Mich. 150, 6 
 
 L. R. A. 454 636' 
 
 V. Iowa City, 29 Iowa, 229 
 
 2902, 305^ 3272 
 
 v. Loftus Iron Co. L. R. 
 10 C. P. 10, 11 Moak, 
 
 Eng. Rep. 214 
 
 5852, 5911^ 5937 
 
 Ellsworth V. Southern Minn. R. 
 
 E. Co. 31 Minn. 543. 182' 
 Elwell V. Crowther, 31 Beav. 103 270* 
 Ely V. Campbell, 59 How. Pr. 333 99' 
 1). Rochester, 26 Barb. 133- 
 
 136 315 
 
 «. Rochester, 26 Barb. 133, 
 
 137 307* 
 
 Emans v. Turnbull, 2 Johns. 322 396' 
 Embrey v. Owen, 6 Exch, 353 
 
 ..288*, 409', 4412, 4433 
 
 V. Owen, 6 Exch. 370 2872 
 
 Emerson v. Taylor, 9 Me. 44 360' 
 
 «. Wiley, 10 Pick. 310 
 
 -. 571', 5803 
 
 Emery ■». Lowell, 104 Mass. 13.. 
 
 .3292, 340. 349* 
 
 V. Lowell, 104 Mass. 13. 16 350' 
 v. Lowell. 104 Mass. 13, 16, 
 
 17 ...- 3493 
 
 1). Lowell, 104 Mass. 13, 17 
 
 -- 347*. 3495 
 
 «. Lowell, 104 Mass. 15.. 
 
 ..329% 3433 
 
 Emporia v. Schmidling, 33 Kan. 
 
 485 365*, 656' 
 
 V. Soden, 25 Kan. 588, 37 
 Am. Rep. 265, and 
 
 note 454% 456' ^4 
 
 Enfield Toll Bridge Co. v. Hart- 
 ford & N. H. R. Co. 
 
 17 Conn. 40, 54 
 
 89', 483', 484' 
 
 Engel V. Smith (Mich.) 46 N. W. 
 
 Rep. 21 22' 2, 128* 
 
 Eno V. Del Vecchio, 4 Duer, 53 
 
 208'. 213 
 
 V. Del Vecchio, 4 Duer, 61 209^ 
 V. Del Vecchio, 4 Duer, 53, 
 
 6 Duer, 17... 213' 
 
 V. Del Vecchio, 6 Duer, 17 233* 
 Enos V. Hamilton, 27 Wis. 256 
 
 l26^ 4753 
 
 Ensminger v. People, 47 111. 384. 3892 
 Erb 1). Brown, 69 Pa. 216.... 5712, 5304 
 Erd V. Chicago & N. W. R. Co. 
 
 41 Wis. 65 6472, 6652 
 
 V. Chicago & N. W. R. Co. 
 
 41 Wis. 66 646«
 
 TABLE OF CASES. 
 
 XXXIX 
 
 Erie v. Caulkins, So Pa. 247 323^ 
 
 V. Magill, 101 Pa. 6l6.124^ 129^ 
 V. Schwiagle, 22 Pa. 888.. 311^ 
 Erie R. Co. v. Decker, 78 Pa. 
 
 295 669^ 
 
 Ernst V. Hudson River R. Co. 24 
 
 How. Pr. 97.. 362^ 
 
 Escanaba & L. M. Transp. Co. v. 
 Chicago, 107 U. S. 678, 
 
 27 L. ed. 442 372" 
 
 •0. Chicago, 107 U. S. 682. 
 
 27 L. ed. 444 370^ 
 
 Esling V. Williams, 10 Pa. 126. . 237^ 
 Esson V. McMaster, 1 Kerr (N. 
 
 B.)501. 3773, 405' , 416 
 
 Estes V. China, 56 Me. 407 
 
 321'^ 329^ 3525 
 
 V. China, 56 Me. 410 334^ 
 
 Eubanks v. Pence, 5 Litt. (Kv.) 
 
 338- ....531', 549« 
 
 Eufaula v. Simmons, 86 Ala. 515 434- 
 
 Eustace v. Jahns, 38 Cal. 3 114' 
 
 Evans v. Dana, 7 R. I. 306 236« 
 
 v. Jayne. 23 Pa. 34...2072, 233=» 
 V. McDermott, 49 N. J. L. 
 
 163, 4 Cent. Rep. 559. 586" 
 V. Merriweather, 4 111. 492 442-* 
 V. Wilmington & W. R. 
 
 Co. 96 N. C. 45 154- 
 
 Evansich v. Gulf, C. & S. F. R. 
 
 Co. 57 Tex. 126 29> 
 
 Evanston v. Gunn, 99 U. S. 660, 
 
 25 L. ed. 306 342' 
 
 Evansville v. Decker, 84 Ind. 325, 
 43 Am. Rep. 86..290^ 
 312', 321', 323', 325-. 326^ 
 
 V. Page, 23 Ind. 525 8P 
 
 Evansville & T. H. R. Co. v. Car- 
 vener, 113 Ind. 51, 12 
 
 West. Rep. 204. 72'' 
 
 V. Griffin, 100 Ind. 221.... 23' ■* 
 V. Griffin, 100 Ind. 221-225 26'^ 
 Everett v. Edwards, 149 Mass. 
 
 588, 5L. R. A. 110... 2143 
 V. Hydraulic Flume Tun- 
 nel Co. 23 Cal. 225.. 
 ..256«, 271S 272', 432', 440' 
 Everson v. Syracuse, 100 N. Y. 
 
 577, 1 Cent. Rep. 756. 337^ 
 Ewart V. Cochrane, 4 Macq. 
 
 123 IW 
 
 V. Cochrane, 7 Jur. N. S. 
 
 925 186^ 24P 
 
 Ewell v. Greenwood, 26 Iowa, 
 
 377 79', 468S 473 
 
 Exchange Fire Ins. Co. v. Dela- 
 ware Canal Co. 10 
 
 Bosw. 180 566^ 567^4 
 
 Explorer, The, 20 Fed. Rep. 
 
 135 370^ 
 
 Fagan v. Armistead, 11 Ired. L. 
 
 433.. 5142 
 
 Fahn v. Reichart, 8 Wis. 255 
 
 135^ 6442, 6451 
 
 Fair v. Philadelphia, 88 Pa. 209, 
 
 32 Am. Rep. 455 330* 
 
 Fairbanks v. Kerr, 70 Pa. 86.. 70% 142'^ 
 
 V. Kerr, 70 Pa. 89... 365 
 
 Fairchild v. Bentley, 30 Barb. 
 
 147- 617' 
 
 Fallon V. O'Brien, 12 R. I. 518.. 
 
 ..612', 6I32 
 
 Fall River Iron Works Co. v. 
 
 Old Colony & F. R. R. 
 
 Co. 5 Allen, 224... 75^ 474^ 
 Falmouth v. George, 5 Ring. 286 497" 
 V. Penrose, 9 Dowl. & Ry. 
 
 452.. 497" 
 
 Fanjoy«. Scales, 29 Cal. 243 
 
 ..21-, 625, 5832 
 
 Fanning v. Osborne, 102 N. Y. 
 
 441, 3 Cent. Rep. 455. 
 
 87-, 90-, 91-9 
 
 Fant V. Lyman (Mont.) 22 Pac. 
 
 Rep. 120 596' 
 
 Farnsworth v. Taylor, 9 Gray, 
 
 106 1843 
 
 Farnum v. Blackstone Canal 
 
 Corp. 1 Sumn. 46 476-' 
 
 v. Concord, 2 N. H. 392... 3393 
 
 Farrand v. Marshall, 21 Barb. 409 38' 
 
 Farrar v. Cooper, 34 Me. 394.571', 580" 
 
 V. Cooper, 34 Me. 394, 400. 579^ 
 
 Farrell v. London, 12 U. C. Q. B. 
 
 343. 327', 36P 
 
 V. Richards, 30 N. J. Eq. 
 
 511... .44236 
 
 Farrelly v. Cincinnati, 2 Disney 
 
 (Ohio) 516 
 
 80-, 126", 4713, 4752 
 
 Farrington v. Anson, 77 Me. 406. 335" 
 Fash V. Third Ave. R. Co. 1 
 
 Daly, 148 252'2 
 
 V. Third Ave. R. Co. 1 
 
 Daly, 150 252" 
 
 Passion v. Landrey (Ind.) 24 N. 
 
 E. Rep. 96 815, 34' 
 
 Faulkner v. Aurora, 85 Ind. 130. 3103 
 
 Fay?). Prentice, 1 C. B. 829 131" 
 
 V. Salem & D. Aqueduct 
 
 Co. Ill Mass. 27 453^ 
 
 Federal St. & P. V. R. Co. v. 
 
 Gibson, 96 Pa. 83.... 139' 
 Feital v. Middlesex R. Co. 109 
 
 Mass. 398. 155" 
 
 Felger v. Robinson, 3 Or. 455 405' 
 
 V. Robinson, 3 Or. 458... 5503 
 Fellows V. Sackett, 15 Barb. 96.. 131"
 
 xl 
 
 TABLE OF CASES. 
 
 Felton V. Deall, 22 Vt. 170 486« 
 
 Fennings v. Lord Grenville, 1 
 
 Taunt. 248... 497^ 
 
 Fent V. Toledo, P. & W. R. Co. 
 
 59 111. 349, 14 Am. 
 
 Rep. 13 ....652, 652', 654' = 
 
 Fenton «. Montgomery, 19 Mo. 
 
 App. 156, 1 West. Rep. 
 
 416 5953 
 
 Ferguson v. Davis County, 57 
 
 Iowa, 601 316' 
 
 «. Firnienich Mfg. Co. 77 
 
 Iowa, 576. 8' 
 
 V. Hubbeli, 97 N. Y. 507. 645' 
 «. Landram, 5 Bush, 230.. 485^ 
 Fernald c. Knox Woolen Co. 82 
 
 Me. 48, 7 L. R. A. 459 547^^ 
 Fernandes v. Sacramento City R. 
 
 Co. 52 Cal. 45 364= 
 
 Fero V. Buffalo & S. L. R. Co. 22 
 
 N.Y. 209 648^ 668=, 669^ 
 
 «. Buffalo & S. L. R. Co. 
 
 22 N. Y. 215. 665' 
 
 Ferrea «. Knipe, 28 Cal. 343 443^ 
 
 Ferreubach v. Turner. 86 Mo. 416 96^ 
 Ferris «. Union Ferry Co. 36 N. 
 
 Y. 312 489* 
 
 V. Wellborn, 64 Miss. 29. 
 
 .3554, 358' 
 
 Fetters v. Humphreys, 18 N. J. 
 
 Eq. 260 17r, 174«, 235« 
 
 V. Humphreys, 18 N. J. Eq. 
 
 260, 19 N. J. Eq. 471. 241^ 
 V. Humphreys, 19 N. J. Eq. 
 
 471 169^ 
 
 Fettretch v. Leamy, 9 Bosw. 535. 204^ 
 
 Ficken «. Jones, 28 Cal. 618 607' 
 
 Field V. Apple River Log Driving 
 
 Co. 67 Wis. 569 556-' 
 
 V. Coleman, 5 Cush. 267.. 602^ 
 
 V. -Jacobs, 12 Met. 118 603* 
 
 V. Leiter, 118 111. 17, 6 
 
 West. Rep. 54 
 
 ..204', 210', 213, 214* 
 
 V. New York Cent. R. Co. 
 
 32N.Y. 339. 64P, 652', 664' 
 V. West Orange, 36 N. J. 
 Eq. 120, 29 Alb. L. J. 
 
 397 320^, 325^326= 
 
 V. West Orange, 39 N. J. 
 
 Eq. 60. 290' 
 
 V. West Orange, 46 N. J. 
 
 Eq. 183 3045, 305*, 306^ 
 
 Filliter v. Phippard, 11 Q. B. 347 
 
 641, 64P, 644^ 645^ 
 
 Fillmore v. Jennings, 78 Cal. 634 398' 
 Fineaux v. Hovenden, Cro. Eliz. 
 
 664 ..126*, 4752 
 
 Fink V. Missouri Furnace Co. 10 
 
 Mo. App. 69 123', 597-2 
 
 Finley v. Langston, 12 Mo. 120.. 644^ 
 Fire Department v. Williamson, 
 
 16 Abb. Pr. 195 663* 
 
 First Parish in Sutton v. Cole, 3 
 
 Pick. 232,240 3412 
 
 Firth V. Bowling Iron Co. L. R, 
 
 3C. P. Div. 254 59T 
 
 Fish V. Dodge, 4 Denio, 311 
 
 49s, 5P, 522, 5g4^ 581 
 
 V. Dodge, 4 Denio, 313 IP 
 
 V. Skut, 21 Barb. 333 626* 
 
 Fisher v. Boston, 104 Mass. 87... 337' 
 
 V. Clark, 41 Barb. 329 632^ 
 
 V. Clisbee, 12 111. 344 488*^ 
 
 V. Prowse, 2 Best «& S. 770 
 
 69^ 121' 
 
 ij.Thirkell, 21 Mich. 20 110' 
 
 Fiske v. Wetmore, 15 R. I. 366, 5 
 
 New Eng. Rep. 93... 572^^ 
 Fitch V. New Haven, N. L. & 1. 
 
 R. Co. 30 Conn. 39.. 479* 
 V. Pacific R. Co. 45 Mo. 
 
 322. 664' 
 
 V. Rawling, 2 H. Bl. 893.. 1895- 
 Fitchburg R. Co. v. Frost, 147 
 Mass. 118, 6 New Eng. 
 
 Rep. 374 239*, 263* 
 
 Fitzell V. Leaky, 72 Cal. 477.243*, 205* 
 Fitzgerald v. Dobson, 78 Me. 559, 
 
 3 New Eng. Rep. 394. 620* 
 Fitzwalter's Case, 1 Mod. 105, 108 
 
 498* '» 
 
 Flagg V. Worcester, 13 Gray, 601 
 
 147^ 296«, 2993, 
 
 3022, 3036^ 3051 2^ 349*, 350 
 V. Worcester, 13 Gray, 602 290' 
 Flanagan v. Philadelphia, 42 Pa. 
 
 219..374^ 376" 6, 378*, 443* 
 V. Philadelphia, 42 Pa. 219, 
 
 228. 540' 
 
 Flansbury v. Basin, 3 111. App. 
 
 531 586«, eoe*' 
 
 Flattes V. Chicago, R. I. & P. R. 
 
 Co. 35 Iowa, 191 147' 
 
 Fleet V. Hageman, 14 Wend. 42. 
 
 4952, 537' 
 
 Fleming v. Beck, 48 Pa. 309. 313 106^ 
 
 V. Davis, 37 Tex. 173 443« 
 
 V. Orr, 2 Macq. H. L. Cas. 
 
 14 617* 
 
 V. Orr, 29 Eng. L. & Eq. 16 586* 
 Fletcher v. Auburn & S. R. Co. 
 
 25 Wend. 462 90'^ 
 
 V. Phelps, 28 Vt. 257, 262. 
 
 3892, 5121 
 
 V. Rylands, L. R. 1 Exch. 
 
 265 551, 436, 586, 589* 
 
 V. Rylands, L. R. 1 Exch. 
 
 280 272: 
 
 ». Rylands, L.R.I Exch. 286 145»
 
 TABLE OF CASES. 
 
 'Fletcher v. Smith, L. R. 2 App. 
 
 Cas. 781,L. R. 7Exch. 
 
 305.. 2708 
 
 Flood V. Doodley, 15 N.Y.Week. 
 
 Dig. 47 24' 
 
 Flora V. Carbeau. 38 K Y. 111.. 582' 
 Florida Southern R. Co. v. Brown, 
 
 23 Fla. 104_ 90\ 91'o 
 
 Flower «. Pennsylvania R. Co. 
 
 69 Pa. 210.. 25^ 
 
 Flynn v. Canton Co. 40 Md. 312 
 
 75^ 103', 114', 4753 
 
 V. San Francisco & S. J. R. 
 
 Co. 40 Cal. 14 
 
 .654', 664', 6652 
 
 Fobes V. Rome, W. & O. R. Co. 
 
 121 N. Y. 505, 8 L. R. 
 
 A. 453 93', 180« 
 
 Fogg V. Nevada C. O. R. Co. 20 
 
 Mev. 429. 78', 81«, 82' 
 
 Foley V. Wyeth, 2 Allen, 131.... 
 
 38', 197, 2005 
 
 Foot V. Bronson, 4 Lans. 47 299' 
 
 Ford V. Chicago & N. R. Co. 14 
 
 Wis. 616 90' 
 
 V. Lacy, 7 Hurl. & N. 151. 399'" 
 
 V. Lukens, 81 Ga. 633 462'* 
 
 V. Tatrgart, 4 Tex. 492 628' 
 
 Fore V. Wiley, L. R. 23 Q. B. 
 
 Div. 203, 40 Alb. L. J. 
 
 270 637'' 
 
 Forker v. Sandy Lake, 130 Pa. 
 
 123. : 1302 
 
 Forney v. Goldsmacher, 75 Mo. 
 
 113. 106^ 
 
 Fort Plain Bridge Co. v. Smith, 
 
 30 N. Y. 44 
 
 ...75^ 389^ 463^ 4753 
 
 V. Smith, SON. Y. 62 79' 
 
 Fort Smith v. Dorlson (Ark.) 4 L. 
 
 R. A. 252.. 601' 
 
 Fort Wayne v. Coombs, 107 Ind. 
 75, 5 West. Rep. 229.. 
 
 290^ 
 
 321', 325', 328, 329^ ^ 33P 
 
 Fort Worth Street R. Co. v. Rose- 
 dale Street R. Co. 68 
 Tex. 169 89* 
 
 Foster?). Browning, 4 R. I. 47.. 181'' 
 V. Essex Bank, 17 Mass. 
 
 479 4904 
 
 V. Searsport Spool & Block 
 Co. 79 Me. 508, 5 New 
 
 Eng. Rep. 236 553 
 
 V. Wright, L. R. 4 C. P. 
 
 Div. 438... 399'o 
 
 Fow V. Roberts, 108 Pa. 489... 49', 61 
 
 Fowle V. Alexandria, 28 U. S. 3 
 
 Pet. 397, 7 L. ed. 719. 337' 
 
 Fowler t). Mott, 19 Barb. 204 480^ 
 
 .. 167^ 
 203 
 
 2913 
 
 310' 
 
 Fowler v. Saks(D. C.) 7L. R. A. 
 
 649 37', 393, 23P 
 
 Fox V. Union Sugar Refinery, 109 
 
 Mass. 292. 161^, 184* 
 
 V. Union Sugar Ref. Co. 
 
 109 Mass. 292, 297.... 255' 
 V. Young. 22 Mo. App. 386 6392- 
 Fraler v. Sears Union Water Co. 
 
 12 Cal. 555 256« 
 
 Frammell v. Little, 16 Ind. 251.. 62P 
 Francies' Appeal, 96 Pa. 200.. 
 Francis v. Cockrell, L. R. 5 Q. B. 
 
 501 
 
 V. Schoellkopf, 53 N. Y. 
 
 152 79', 292«, 475' 
 
 V. Schoellkopf, 53 N. Y. 
 
 154.... 
 
 Franke v. Paducah Water Supply 
 
 Co. (Ky.) 4 L. R. A. 
 
 265 
 
 Franklin v. Fisk, 13 Allen, 211.. 
 
 120, 1473, 
 
 3022, 3036^ 3321, 3493^ 359 
 
 «. Pollard Mill Co. 88 Ala. 
 
 318__ 4565- 
 
 Franklin Wharf Co. v. Portland, 
 67Me. 46, 24Am. Rep. 
 
 1 292^ 321^ 3275, 352^ 
 
 Franz v. Sioux City & P. R. Co. 
 
 55 Iowa, 107 93' 
 
 Eraser v. Tupper, 29 Vt.409.135^ 645' 
 
 Frazer ■». Kimler, 2 Hun, 514 
 
 6O42, 607» 
 
 Frazier v. Brown, 12 Ohio St. 
 
 294 12', 280', 28P, 425*^ 
 
 V. Brown, 12 Ohio St. 294, 
 312, 3 Am. L. Reg. N. 
 
 S. 240, ?iote 287' 
 
 «. Brown, 12 Ohio St. 312. 288-' 
 Freary v. Cooke, 14 Mass. 488.. 
 
 ..498'\ 50P 
 
 Freeman v. State, 6 Port. 372 70^ 
 
 Freemantle v. London & N. W. 
 R. Co. 2 Fost. & F. 
 
 337 _ 
 
 Freer v. Cameron, 4 Rich. L. 228 
 
 Fremont, E. & M. V. R. Co. v. 
 
 Marley, 25 Neb. 138.. 
 
 290', 300^ 304^ 
 
 French v. Braiutree Mfg. Co. 23 
 
 Pick. 216.... 532\ 571', 578^ 
 V. Carhart, 1 N. Y. 96.... 172« 
 V. Cresswell, 13 Or. 418... 
 
 591'. 592-^ '» 
 
 V. Marstin, 24 N. H. 440.. 238* 
 
 V. Quincy, 3 Allen, 13 345-* 
 
 Fresno Canal ct Irrig. Co. v. Dun- 
 bar, 80 Cal. 530 450-^3 
 
 Fretz V. Bull. 53 U. S. 12 How. 
 
 466, 13 L. ed. 1068... 371* 
 
 644^ 
 19*
 
 ilii 
 
 TABLE OF CASES. 
 
 Freudenstein v. Heine, 6 Mo. 
 
 App. 287 3031 
 
 Frink v. Lawrence, 20 Conn. 117 477^ 
 V. Lawrence, 20 Conn. 120 77" 
 Fripp V. Hasell, 1 Strobh. L. 173 543' 
 Pritschie v. Fritschie (Wis.) 45 N. 
 
 W. Rep. 1088 160= 
 
 Frost V. Eastern R. Co. 64 N. 
 
 H. 220, 4 New Eng. 
 
 Rep. 527 30 
 
 v. Plumb, 40 Conn. 111... 639^ 
 Frostburg v. Hitchins, 70 Md. 56 328'' 
 Frye v. Moor, 53 Me. 583 
 
 273«, 285, 4403 
 
 Fryer 1;. Warne, 29 Wis. 511 300=* 
 
 Fuchs V. Schmidt, 8 Daly, 317.- 123^ 
 Fuller V. Chicopee Mfg. Co. 16 
 
 Gray, 46 271 
 
 v. Melrose, 1 Allen, 166... 458^ 
 V. iSwan River Placer Min. 
 
 Co. 12 Colo. 12..289^ 448' 
 Fulmer v. Williams, 122 Pa. 191, 
 
 1 L. R. A. 603 
 
 370^ 404^ 433' 
 
 Fulton V. Short Route R. Trans. 
 
 Co. 85 Ky. 640. 93« 
 
 Furguson v. Davis Co. 57 Iowa, 
 
 601 332' 
 
 Furlong v. Carroll, 7 Ont. App. 
 
 145 2W 
 
 G. 
 
 Gagg V. Vetter. 41 Ind. 228 644 
 
 GaUigan v. Metacomet Mfg. Co. 
 
 143 Mass. 527, 3 New 
 
 Eng. Rep. 705. 23* 
 
 Galveston ■y. Menard, 23 Tex. 
 
 349.. 378«, 492''' 
 
 Galveston, H. & S. A. R. Co. v. 
 
 Home, 69 Tex. 643... 648* 
 Galveston Oil Co. v. Morton, 70 
 
 Tex. 400 26^ 
 
 •Galvin v. New York, 112 N. Y. 
 
 223. 73'o 
 
 Gammell v. Woods & Forests 
 
 Comrs. 3 Macq. H. L. 
 
 Cas. 419 496* 
 
 Gandy ». Jubber, 5 Best & S. 78. 65 
 V. Jubber, 5 Best & S. 78, 
 
 485, 10 Jur. N. S. 652 46' 
 V. Jubber, 5 Best «& S. 87. 
 
 ..49, 49^ 50 
 
 Gannon v. Hargadon, 10 Allen, 
 
 106, 109. 1473, 
 
 295', 296* «, 302^ 3493, gQp 
 ■Gardiner v. Tisdale, 2 Wis. 153.. 
 
 1883, 560' 
 
 Gardner v. Heartt. 2 Barb. 165.. 39» 
 V. Newburgh, 2 Johns. Ch. 
 162, 1 N. Y. Ch. L. 
 ed. 382... 8', 355^, 452^ 454^ 
 V. Newburgh, 2 Johns. Ch. 
 162, 1 N. Y. Ch. L. ed. 
 332, 7 Am. Dec. 526, 
 
 note, .532 425* 
 
 0. Newburgh, 2 .Johns. Ch. 
 162, 1 N. Y. Ch. L. 
 ed. 332, 7 Am. Dec. 
 526, and note, 531-534 442' 
 v. Newburgh, 2 Johns. Ch. 
 1.62, 1 N. Y. Ch. L. 
 ed. 333, 7 Am. Dec. 
 
 526- 477' 
 
 v. Newburgh, 2 Johns. Ch. 
 162, 1 N. Y. Ch. L. 
 ed. 332, 7 Am. Dec. 
 
 532. 443« 
 
 Garitee v. Baltimore, 53 Md. 422, 
 
 437 -.126*, 4752 
 
 Garland v. Furber, 47 N. H. 301 245'2 
 
 V. Towne, 55 N. H. 55 27- 
 
 V. Towne, 55 N. H. 56 271- 
 
 V. Towne, 55 N. H. 57 272 
 
 Garrett v. Chicago & N. W. R. 
 
 Co. 36 Iowa, 121 669* 
 
 V. Freeman, 5 Jones, L. 78 
 
 645^ 6472 
 
 «. Jackson, 20 Pa. 331 428* 
 
 V. Janes, 65 Md. 260, 7 
 
 Cent. Rep. 403 9' 
 
 V. State, 49 N. J. L. 94, 5 
 
 Cent. Rep. 337 ll^^ 
 
 Garretzen v. Duenckel, 50 Mo. 104 233^ 
 
 Garrison v. Rudd, 19 111. 558 158^ 
 
 Garritt v. Sharp, 3 Ad. & El. 335 255' 
 Garwood v. New York Cent. & 
 H. R. R. Co. 83 N. Y. 
 400, 38 Am. Rep. 453 
 ..425*, 4415, 451*, 456*, 457 
 V. New York Cent. & 11. 
 R. R. Co. 83 N. Y. 
 404, 38 Am. Rep. 452. 409' 
 T. New York Cent. & H. 
 
 R. R.Co. 116 N.Y. 649 459^ 
 Gaskill V. Dudley, 6 Met. 546. ... 339' 
 Gaston v. Mace, "33 W. Va. 14, 5 
 
 L. R. A. 393.- 
 
 374', 376-, 
 
 389-, 405', 412', 417'^ ^ 550^ 
 Gates V. Blincoe, 2 Dana, 158 ... 468' 
 V. Southwestern Brush E. 
 L. & P. Co. 40 La. 
 
 Ann. 467 156' 
 
 Gateward's Case, 6 Coke, 59 i... 580 
 Gautret v. Egerton, L. R. 2 C. P. 
 274, 36 L. J. N. 8. C. 
 P. 191 24*
 
 TABLE OF CASES. 
 
 xliii 
 
 <3autret v. Egertor., L. R. 3 C. P. 
 371, 3G L. J. N. S. C. 
 
 P. 191... 23', 150^ 
 
 Gavin v. Chicago, 97 111. 66 23^ 
 
 Gavit V. Chambers, 3 Ohio, 496.. 389- 
 
 Gay, Ex parte, 5 Mass. 419 573* 
 
 V. Boston & A. K. Co. 141 
 ]\[ass. 407, 2 New Eug. 
 
 Kep. 240 - 234^ 
 
 Gayetty v. Belhuue, 14 Mass. 49, 
 
 55 427'^ 575'2 
 
 «. Bethune, 14 Mass. 51... 169'' 
 V. Bethune, 14 Mass. 51, 53 
 
 427^ 573-^ 
 
 Gaynor v. Old Colony & N. R. 
 
 Co. 100 Mass. 20S_... 362* 
 Gehman v. Erdmau, 15 W. N. C. 
 
 278.-- 425^ 
 
 Genesee Chief, The, v. Fltzhugh, 
 53 U. S. 12 How. 443, 
 13 L. ed. 1058 -.370, 371^ « ' 
 -Gent V. Abbott, 8 Taunt. 187.-.. 498^ 
 Gentleman v. Soule. 32 III. 271.. 262* 
 
 V. Soule, 32 111. 272 163^ 
 
 George v. Fisk, 32 N. H. 32 261'^ 
 
 Georgetown v. Alexandria Canal 
 Co. 37 U. S. 12 Pet. 
 91, 9 L. ed. 1012 -.4G8-, 477^ 
 Georgetown St. Comrs. v. Taylor, 
 
 2Bay{S. C.) 282 ..75-», 475= 
 Georgia Pac. R. Co. v. Propst, 85 
 
 Ala 203 145'- 
 
 Gerber®. GrabeL 16'fli'223"-" 166' 
 Gerenger v. Summers, 2 Ired. L. 
 
 229 262* 
 
 Gerhard v. Bates, 2 El. & Bl. 490 139=* 
 V. Seekonk River Bridge 
 Comrs. 15 R. I. 334, 2 
 New Eng. Rep. 619 .. 379' 
 Gerrard v. Cooke, 2 Bos. & P. N. 
 
 R. 109- 2433, 265^ 
 
 •Gerrish v. Brown, 51 Me. 256 
 
 404^ 412' 
 
 T. Brown, 51 Me. 256, 263. 560' 
 V. Clough, 48 N. H. 9-396^ 461^ 
 V. tjhatiuck, 132 Mass. 235 
 
 --246, 246', 254, 205^ 577'' * 
 -Gerty v. Haley, 29 \V. Va. 98 ... 363-^ 
 
 Getty w. Hamlin, 46 Hun, 1 465' 
 
 V. Hudson River R. Co. 21 
 
 Barb. 617 374^ 
 
 •Gibbons v. Ogden, 22 U S. 9 
 Wiieat. 1, 214, 6 L. ed. 
 
 23 74.- -... 481* 
 
 V. Wi-sconsin Valley R. Co. 
 
 66 Wis. 161 647'^ 
 
 Gibbs V. Liverpool Docks, 3 Hurl. 
 
 &N. 164 .- 566- 
 
 V. Liverpool Docks, 3 Hurl. 
 
 & N. 164, 176 568V 
 
 Gibbs V. Williams, 25 Kan. 214, 
 
 37 Am. Rep. 241 -148', 295' 
 Gibson v. Chouteau, 80 U. S. 13 
 
 Wall. 92, 20 L. ed. 534 444^ 
 V. Durham, 3 Rich. L 85. 235'' 
 
 V. Fischer, 68 Iowa, 29 545' 
 
 V. Holden, 115 111. 199, 1 
 
 West. Rep. 677 
 
 204^ 205', 220- '*, 221«, 224* 
 «. Johnson, 4 111. App. 288 342' 
 V. Preston. L. R. 5 Q B. 
 
 218, 222 338' 
 
 GiflEord v. Babies Hospital (Sup. 
 
 Ct.) 17 N. Y. S. R. 886 335« 
 V. New Jersey R. ifcTransp. 
 
 Co. 10 N. J. Eq. 177. 468'^ 
 V. Yarborough, 5 Bing. 162 397' 
 V. Yarborough, 5 Bing. 163 400 
 
 Gilbert v. Drew, 10 Pa. 219 220' 
 
 V. Greeley, S. L. & P. R. 
 
 Co. 13 Colo. 501 126' 
 
 V. Mickle, 4 Sandf. Ch. 357, 
 
 7 N. Y. Ch. L. ed. 1132 77^ 
 V. Morris Canal & Bkg. Co. 
 
 8N. J. Eq. 495. -..80', 476' 
 
 V. Nagle, 118 Mass. 278 
 
 - 19', 568' 
 
 Gillespie v. McGowan, 100 Pa. 
 
 144 23', 26'^ 
 
 Gillette. Johnson, 30 Conn. 180. 
 
 440•^ 443" 
 
 ®. Western R. Corp. 8 
 
 Allen, 560 637' 
 
 Gillham i). Madison Co. R. Co. 
 
 49 111. 484.- 295' 
 
 Gilliland v. Chicago & A. R. Co. 
 
 19 Mo. App. 411, 2 
 
 West. Rep. 438 
 
 AV^ 6289 
 
 Gillis V. Nelson, 16 La. Ann. 275 
 
 295', 300^ 
 
 ■». Pennsylvania R. Co. 59 
 
 Pa. 129 25' 
 
 Gillison v. Charleston, 16 W. Va. 
 
 282, 37 Am. Rep. 763. 
 
 ----290', 3045 
 
 Gillson V. North Gray R. Co. 33 
 
 U. C. Q. B. 129 645' 
 
 Gilman v. Laconia, 55 N. H. 130, 
 
 20 Am. Rep. 175 293* 
 
 V. Philadelphia, 70 U. S. 3 
 
 Wall. 713, 18 L. ed. 96 464' 
 Gilmer v. Montgomery, 26 Ala. 
 
 665 3292 
 
 Gilmore». Driscoll, 122 Mass. 199 
 
 38', 180^ 190', 198, 201 
 
 V. Holt, 4 Pick. 258 --600\ 603-* 
 
 V. Utica, 55 Hun, 514 SS^ 
 
 Giraud v. Hughes, 1 Gill & J. 249 
 
 393-, 397'. 399'<'
 
 xliv 
 
 TABLE OF CASES. 
 
 Gladfelter«. Walker, 40 Md. 1.. 291^ 
 Glsessner v. Anheuser-Busch 
 
 Brew. Asso. 100 Mo. 
 
 508 725, 871, 958^ 251'' 
 
 Glave V. Harding, 3 Hurl, & N. 
 
 937 5748 
 
 Gleason v. Amsdell, 9 Daly, 393. 27^ 
 
 Glenn v. Canby, 24 :\[(1. 127 221« 
 
 V. Kays, 1 111. App. 479-.. 543' 
 Gloucester v. I3each, 3 Pick. 60, 
 
 note .427'" 
 
 Glover v. Mersman, 4 Mo. App. 
 
 90.- -. 1045 
 
 V. Powell, 10 N. J. Eq. 211 3748 
 Gluck V. Rideewood Ice Co. (Sup. 
 
 Ct.) 31 N. Y. S. R 99 
 
 390^ 565-», 568' 
 
 Goddard, Petitioner, 16 Pick. 504 103' 
 Godeau ». Blood, 52 Vt. 251 
 
 605' 6, 607', 620^ 
 
 V. Blood, 52 Vt. 251, 36 
 
 Am. Rep. 751 619^ 
 
 Godfrey v. Alton. 12 111. 29 377^ 
 
 ». Alton, 12 111. 30 560' 
 
 V. Alton, 12 111. 37 397^ 
 
 Godley v. Hagerty, 20 Pa. 387, 59 
 
 Am. Dec. 735, note.^. ig** 
 V. Hagerty, 20 Pa. 387, affd. 
 
 in Carson v. Godley, 26 
 
 Pa. Ill 44', 51, 51', 61^ 
 
 Goff «. Brainerd. 58 Vt. 468, 2 
 
 New Eng. Rep. 612 .. 558= 
 
 Goiue V. Allen. 4 Bush, 6JS 487^ 
 
 Gold Hunter, The, Biatchf. & H. 
 
 300 - 371* 
 
 Goldschmid v. Starring, 5 Mack- 
 
 ev, 582, 8 Cent. Rep. 
 
 716 2063, 207' 
 
 Goldsmid 'P.Tunbridge Wells Imp. 
 
 Comvs. L. R. 1 Ch. 
 
 App. 349 -- 288', 291* 
 
 •0. Tunbridge Wells Imp. 
 
 Comrs. L. R. 1 Eq. 
 
 161, L. R. 1 Ch. App. 
 
 349 - 291' 
 
 Goldsmiths. Elsas, 53 Ga. 186.. 
 
 2953, 300^ 
 
 Good V. Galveston, H. & S. A. 
 
 R. Co. (Tex.) 4 L. R. 
 
 A.801 639' 
 
 V. Galveston, H. & S. A. 
 
 R. Co. (Tex.) 11 S. W. 
 
 Rep. 854 - 639* 
 
 Goodale v. Tuttle, 29 N. Y. 459. 
 
 ..280-, 296^ 2993, 300S 361^ 
 Goodall V. Godfrey, 53 Vt. 219.. 
 
 166', 171' 
 
 Goodman «. Gay, 15 Pa. 194.... 611' 
 
 V. Tavlor, 5 Car. & P. 410. 611« 
 
 Goodrich «."Burbank, 97 Mass. 22 28S* 
 
 Goodrich •». Lincoln, 93 111. 359. 209^ 
 
 V. Lincon, 93 111. 360 222'^ 
 
 Goodsell V. Lawson, 42 Md. 348. 379' 
 V. Taylor, 41 Minn. 207, 4 
 
 L. R. A. 673 145^ 146^- 
 
 Goodson V. Richardson, L. R. 9 
 
 Ch. 221 98' 
 
 Goodlitle v. Alker, 1 Burr. 133. . 264 
 V. Kibbe, 50 U. S. 9 How. 
 
 471, 13 L. ed. 220.3719, 378''^ 
 Goodwill V. Bossier Parish Police 
 
 Jury, 38 La. Ann. 752 403* 
 Goodwyn v. Cheveley, 4 Hurl. & 
 
 N. 631 607'' 
 
 Goodyear 0. Cary, 4 Biatchf. 271 88' 
 Gordon v. Baxter, 74 N. C. 470.. 
 
 75*, 475^ 
 
 V. Richmond, 83 Va. 436.. 
 
 100', 115'- 
 
 Gorham v. Cooperstown, 59 X. Y. 
 
 660 342', 343* 
 
 V. Gross, 125 Mass. 232 
 
 9^ 154, 233*, 371' 
 
 Gorman v. Pacific R. Co. 26 Mo. 
 
 445 595^ 
 
 Gormley v. Sanford, 52 111. 159.. 
 
 ....2953, 298=, 302' 
 
 Gosport li. Evans, 112 Ind. 133, 
 11 West. Rep. 118... 
 
 1248, 126^ 128«, 139=6 
 
 Gough V. Bell, 23 N. J. L. 441.. 
 
 3786, 385» 
 
 Gould v. Boston, 120 Mass. 300.. 
 
 340*, 348*- 
 
 V. Boston Duck Co. 13 
 
 Gray, 442 424^ 4436- 
 
 V. Eastern R. Co. 142 Mass. 
 85, 2 New Eng. Rep. 
 
 595 394* 
 
 «. Hudson River R. Co. 6 
 
 N. Y. 522 359* 
 
 v. James, 6 Cow. 369 499* 
 
 V. Slater Woolen Co. 147 
 ^Mass. 315, 6 New Eng. 
 
 Rep. 599 136* 
 
 V. Topeka, 32 Kan. 485.. 
 
 316', 332' 
 
 Gourdier v. Cormack, 3 E. D. 
 
 Smith. 200 39* 
 
 V. Cormack, 2 E. D. Smith, 
 
 254 .- 114' 
 
 Gouverneur v. National Ice Co. 
 
 57 Hun, 474.208*, 358*. 394^ 
 Guenther v. St. Louis, I. M. & S. 
 R. Co. 95 Mo. 286, 14 
 
 West. Rep. 735.. 135' 
 
 Graham v. Payne, 122 Ind. 403.. 
 
 ...609', 610' 
 
 V. Pennsylvania R. Co. 39 
 
 Fed. Rep. 596 489*
 
 TABLE OF CASES. 
 
 xlv 
 
 <3ramlicli v. Wurst, 86 Pa. 74, 27 
 
 Am. Kep. 684 26«. 32' 
 
 ■Grand Junction Canal Co. v. 
 Shugar, L. R. 6 Ch. 
 
 483 454\ 456' » 
 
 •Grand Rapids & I. R. Co. v. 
 Heisel, 38 Mich. 63... 
 
 82, 82'. 932, 94' 
 
 Grand Rapids Booming Co. v. 
 
 Jarvis, 30 Mich. 308.. 524 
 
 V. Jarvis, 30 Mich. 321 435^ 
 
 Grand Trunk R. Co. v. Ricliard- 
 son, 91 U.S. 454, 2a L. 
 
 ed. 356. _ 667' 
 
 <^ranger ». Swart, 1 AYooIw. 88. 399" 
 
 Grant v. Chase, 17 Mass. 443 
 
 420^ 573^ 574^ 
 
 V. Davenport, 18 Iowa, 179 500' 
 
 v. Drew, 1 Or. 35 480- 
 
 V. Drew, 1 Or. 38.. 4809 
 
 V. Erie, 69 Pa. 420, 8 Am. 
 
 Rep. 272 330* 
 
 V. Kuglar, 81 Ga. 637, 3 L. 
 
 R. A. 606 410S 462' 
 
 *. Ricker, 74 Me. 481 624* 
 
 V. Ricker, 74 Me. 487 623^ 
 
 V. Stillwater, 35 Minn. 242 
 
 lOOS 342' 
 
 Graves®. Moses, 13 Minn. 335... 637' 
 V. Shattuck, 35 N. H. 257. 560' 
 V. Smith, 87 Ala. 450, 5 L. 
 
 R. A. 298... 2112 
 
 V. Thomas, 95 Ind. 361. 29^ 117 
 
 V. Thomas, 95 Ind. 364 110' 
 
 Gray v. Boston Gas Light Co. 114 
 
 Mass. 149 
 
 104^ 105^ 106, 150' 
 
 V. Chicago, I. & N. R Co. 
 77 U. S. 10 Wall. 454, 
 
 19 L. ed. 969. .465^' 
 
 V. Harris, 107 Mass. 492.. 431- * 
 V. St. Paul & P. R. Co. 13 
 
 Minn. 315 90' 
 
 V. Second Ave. R. Co. 65 
 
 N. Y. 561 6125 
 
 Greasly v. Codling, 2 Ring. 263.. 473' 
 Great Falls Co. v. Worster, 15 N. 
 
 H. 460.. 545" 
 
 Great Northern R. Co. v. Swaf- 
 
 field, L. R. 3Exch. 132 639« 
 Greatrex I). Hay ward, 8Exch. 291 296- 
 Great Western R. Co. v. Braid, 1 
 Moore, P. C. (N. S.) 
 
 101 15.5« 
 
 V. Morthland, 30 111. 451.. 147' 
 Greeley v. ]\Iaine Cent. R. Co. 53 
 
 Me. 200.. .- 147« 
 
 Green «. Chelsea, 24 Pick. 71... 564' 
 v. Collins, 86 N. Y. 246.. 
 
 1673, 419' 
 
 Green v. Doyle, 21 111. App. 205. 
 
 .' 591'. 615' 
 
 1). Knife Falls Boom Co. 
 
 35 Minn. 155 557' 
 
 Green & B. R. Nav. Co. v. Cliesa- 
 
 peake, O. & S. W. R. 
 
 Co. (Ky.) 2 L. R. A. 
 
 510 464^ 46.i« 
 
 V. Palmer. 83 Ky. 646 465* 
 
 Green Bay & j\I. Canal Co. v. 
 
 Kaukauna Water Pow- 
 er Co. 70 Wis. 653... 418' 
 Greene v. New York C. & H. R. 
 
 R. Co. 12 Abb. N. C. 
 
 124 94', 2473 
 
 «. Nunnemacher, 86 Wis. 
 
 50... 
 
 79', 80-, 126*, 2912, 4713 47,5s 
 Greenleafs. Francis, 18 Pick. 117 
 
 123, 2.57-', 4543 
 
 V. Francis, 18 Pick. 117, 
 
 119, 122 122 
 
 ». Illinois Cent. R. Co. 29 
 
 Iowa 14.... 612' 
 
 Greenslade v. Halliday, 6 Bing. 
 
 379. .--- 443« 
 
 Greenwald v. Kappes, 31 Ind. 216 23P 
 Greenwoods. Louisville, 13 Bush, 
 
 229... 335' 
 
 Greer v. Haugabook, 47 Ga. 282. 
 
 4:9*, 486*, 487* 
 
 Gregg «. Gregg, 55 Pa. 227 59P 
 
 Gregory v. Bush, 64 Mich. 37, 7 
 
 West. Rep. 169.. .3583, 424* 
 V. Bu^sh, 64 Mich. 37, 7 
 
 West. Rep. 172 299^ 
 
 Greye's Case, Owen, 20 354. 499« 
 
 Gridley v. Bloominirton, 68 111. 47 114' 
 V. Bloomington, 68 111. 50. 
 
 10«*, 109, 109' 
 
 Gries v. Beck, 24 Ohio St. 329... 626^ 
 Griffin v. New York, 9 N. Y, 
 
 456 342* 
 
 V. Slireveport & A. R. Co. 
 
 41 La. Ann. 808. 82' 
 
 V. Williamstown, 6 W. Va. 
 
 312. 342', 343- 
 
 Griffith V. McCullum, 46 Barb. 
 
 561. - 469' 
 
 Griffiths V. Morrison, 106 N. Y. 
 
 165, 7 Cent. Rep. 773. 
 
 169*, 171' 3 
 
 Griggs V. Fleckenstein, 14 Minn. 
 
 81 367' 
 
 Grigsby v. Clear Lake Water 
 
 Works Co. 40 Cal. 396 
 
 75*, 79', 4753 
 
 Grill V. General Iron Screw Collier 
 
 Co. L. R. 1 C. P. 
 
 600.... 490
 
 xlvi 
 
 TABLE OF CASES. 
 
 Gross V. Lampasas, 74 Tex. 195.. 
 
 258^ 302', 30.3' 
 
 Groton v. Hurlburt, 22 Cono. 178 3748' 
 Grove v. Fort Wayne, 45 Ind. 429, . 
 
 15 Am. Kep. 262-264- *, 577* 
 Guest V. Reynolds, 68 111. 478, 18 
 
 Am. Rep. 570 38' 
 
 Guille «. Swan, 19 Johns. 381.. . 144' 
 Gulf, C. & S. F. R. Co. V. Fuller, 
 
 63 Te.x. 467 180* 
 
 V. Morris, 67 Tex. 692 89-* 
 
 V. Witte (Tex.) 4 S. W. 
 
 Rep. 490. 654' 
 
 Gulf Pond Oyster Co. v. Baldwin, 
 
 42 Conn. 255..- .. 495^ 
 
 Gundry v. Felt, 1 T. R. 334, 337. 543' 
 Gwinnell v. Earner, L. R. 10 C. P. 
 
 658 49, 
 
 49^ 63'«, 63, 633, io84^ io9' 
 
 n. 
 
 Hacke's Appeal, 101 Pa. 245 577*' 
 
 Hackett v. Wilson, 12 Or. 25 
 
 482', 4843", 487' 
 
 Hackstack «. Keshena Imp. Co. 
 
 66 Wis. 439.... 556'^ 
 
 Hadden v. Shoutz, 15 111. 581 .-. 166' 
 Hadley v. Taylor, L. R. 1 C. P. 
 
 53 , .- 
 
 412, 739^ 105', 110', 117, 131' 
 Haflord v. New Bedford, 16 Gray, 
 
 297 - 3345 
 
 Hagan v. Campbell, 8 Port. (Ala.) 
 
 9, 33 Am. Dec. 267 397' 
 
 V. Sharpe, 7 Car. & P. 755. 619' 
 Hagg V. Vanderbeurgh County 
 
 Comrs. 60Ind. 511--- 335*5 
 Habn V. Garratt, 69 Cal. 146 
 
 592'«, 593* 
 
 Haight v. Keokuk, 4 Iowa, 199.. 
 
 372S, 380% 3863 
 
 Hail v. Reed, 15 B. Mon. 479 ... . 80« 
 Haines v. Hall, 17 Or. 165, 3 L. 
 
 R. A. 609, note 4063 
 
 T. Roberts, 7 El. & Bl. 625 38^ 
 V. Welch, 14 Or. 319 
 
 4023, 405% 4083, 5562 
 
 Haldeman «. Bruckhart, 45 Pa. 
 
 514 123, 2813, 283 
 
 Hale «. Oldroyd, 14 Mees. & W. 
 
 789.. 5785 
 
 Hall V. Armstrong, 53 Conn. 554, 
 
 1 New^Ene:. Rep. 831. 1753 
 V. Augsbury, 46 N. Y. 622 263' 
 V. Augsbury, 46 N. Y. 625 262* 
 
 V. Ionia, 38 Mich. 493 453' 
 
 V. Kitson, 4 Chand. (Wis.) 
 
 20 80^ 4713 
 
 Hall V. McCaughey, 51 Pa. 43.. 
 
 -571', 577* 
 
 V. McLeod, 3 Met. (Ky.) 98 
 
 --- 236\ 437^- 
 
 V. Ripley, 119 Mass. 135 -- 127*- 
 ■y. Swift. 6 Scott, 167. -443«, 571' 
 Hall & S. R. Co., Ee, 5 Mees. & 
 
 W. 327.-- 401' 
 
 Halladay v. Marsh, 3 Wend. 142. 5913 
 Hallock V. Baranski, Daily Reg. 
 
 Aug. 9, 1884 .-.- -2473 
 
 Halsey v. McCoimick, 18 N. Y. 
 
 147- 396% 401* 
 
 V. McCormick, 18 K Y. 149 397* 
 V. Rapid Transit R. Co. 47 
 
 N. J. Eq. ■ 2513 
 
 Hamilton v. Columbus, 52 Ga. 
 
 435 288', 304* 
 
 '6. Donegall, 3 Ridgway. t. 
 
 Hardw. 267- 531', 549^ 
 
 V. Farrar, 128 Mass. 492 -. 5713 
 D. New York & H. R. Co. 
 9 Paige, 171. 4 N. Y. 
 
 Ch. L. ed. 653 728, 732 
 
 ©. Vicksburg, S. & P. R. 
 Co. 119 U. S. 280, 30 
 
 L. ed. 393 463', 464** 
 
 V. White, 5 N. Y. 9 - 262* 
 
 v. Whitridge, 11 Md. 138- - 79' 
 Hamilton County v. Mighels, 7 
 
 Ohio St. 100 3393 
 
 Hamlin v. Pairpoint Mfg. Co. 
 141 Mass. 51, 2 New 
 
 Eug. Rep. 143 561*5 
 
 Hammack v. 'White, 11 C. B. N. 
 
 S. 588-593 136« 
 
 V. White, 11 C. B. N. S. 
 588, 31 L. J. N. S. C. 
 
 P. 129 144*, 146« 
 
 Hammond v. Fuller, 1 Paige, 197, 
 
 3 N. Y. Ch. L. ed. 614 476* 
 V. Schifif, 101 N. C. 161-..- 333* 
 V. Zehner, 21 N. Y. 118.-. 188^ 
 Hampson v. Taylor, 15 R. I. 83, 
 
 1 New Eng. Rep. 117. 366 
 «. Taylor, 15 R. I. 83, 85, 1 
 New Eng. Rep. 117, 3 
 New Eng. Rep. 640... 3653 
 Hancock v. Wentworth, 5 Met. 
 
 446- 5732, 5752 
 
 Hand v. Brookline, 126 Mass. 324 
 
 ..-- 34423, 3481 
 
 Handelun v. Burlington, C. R. & 
 
 N. R. Co. 72 Iowa, 709 136« 
 Handly v. Anthony, 18 U. S. 5 
 Wheat. 380, 5 L. ed. 
 
 113.. 399»' 
 
 Handy side v. Powtrs, 145 Mass. 
 123, 5 New Eng. Rep. 
 179 41*, 63*
 
 TABLE OF CASES. 
 
 xl 
 
 vu 
 
 Haney v. Compton, 36 N. J. L. 
 
 507 -- 54P 
 
 Hanford v. St. Paul & D. II. Co. 
 
 43 Minn. 104, 7 L. R. 
 A 709 559^ 
 
 Hanlej'C. ClarCnO ^ia9s."263" 434^ 
 JIanlon v. Ingram, 1 Iowa, 108 .. 645^ 
 
 V. Ingram, 3 Iowa, 81 644- 
 
 V. Keokuk, 7 Iowa, 488... 128' 
 V. South Boston R. Co. 129 
 
 Mass. 310 127-' 
 
 Hannam v. Mockelt, 2 Barn. & C. 
 
 9U 528 
 
 Hannem v. Pence, 40 Minn. 127. 
 
 9', 14-', 27^ 1073 
 
 Hannibal & St. J. R. Co. v. Mis- 
 souri River Packet Co. 
 
 125 U. S. 260, 31 L. ed. 
 
 731 - 463^ 
 
 Hannoa v. Hargadon, 10 Allen, 
 
 106.... 8O35 
 
 V. St. Louis County, 62 Mo. 
 
 313 837', 342' 
 
 Hansburg v. Basin, 3 111. App. 
 
 531. 594'° 
 
 Hanway v. Boultbee, 4 Car. & P. 
 
 350 628S 
 
 Harbert's Case, 3 Coke, fol. 11, p. 
 
 30. 225 
 
 Hardcastle v. South Yorkshire R. 
 
 & R. D. Co. 4 Hurl. 
 
 &N. 67.26^ 116', 117', 119 
 Hardesty v. Ball, 43 Kan. 151 ... 427' 
 Hardin v. Ledbetter, 103 N. C. 90 546^ 
 Harding v. Stamford Water Co. 
 
 41 Conn. 87... 454^ 
 
 V. Stamford Water Co. 41 
 
 Conn. 92 443« 
 
 V. Whitney, 40 Ind. 379.. 461=* ^ 
 Hargreaves v. Deacon, 25 Mich. 1 26'^ 
 Harlan & H. Co. v. Paschall, 5 
 
 Del. Ch. 485 384^ 
 
 V. Paschall, 5 Del. Ch. 438. 463=* 
 Harlow v. Humiston, 6 Cow. 189 
 
 36\ 250' 
 
 V. Stinson, 60 Me. 347 593- 
 
 Harmon v. Kline, 52 Ark. 251... 202^ 
 Harold v. Jones, 86 Ala. 274, 3 L. 
 
 R. A. 406 70, 4023, 558* 
 
 Harper v. Williams, 110 N. Y. 
 
 260. 13 Cent. Rep. 433 565^ 
 Harrigan v. Wilmington (Del.) 11 
 
 Cent. Rep. 251 
 
 316, 328', 332' 
 
 Harriman v. Pittsburgh, C. & St. 
 
 L. R. Co. 45 Ohio St. 
 
 11.. 291 
 
 Harrington v. Edwards, 17 Wis. 
 
 586.. 376^6 
 
 V. Peck, 11 111. App. 159.. 297* 
 
 Harris v. Cohen. 50 Mich. 324... 52' 
 T. Northern Ind. R. Co. 20 
 
 N. Y. 232 639* 
 
 Harrison v. Berkley, 1 Strobh. L. 
 
 548 656» 
 
 V. Brown, 5 Wi.s. 27 591^ 
 
 «. Great Northern R. Co. 
 
 3 Hurl. & C. 231 431* 
 
 V. Missouri Pac. R. Co. 88 
 Mo. 625, 5 West. Rep. 
 
 395 ....635'o, 636* 
 
 V. Sterrett, 4 Harr. & McH. 
 
 540. 75', 79^ 359', 475^ 
 
 narrower v. Ritson, 37 Barb. 301 469' 
 Hart V. Albtiuv, 3 Paige, 213, 3 
 
 N. Y. Ch. L. ed. 121. 648« 
 V. All)any, 9 AVend. 571.. 247'' » 
 V. Baldwin, 1 N. Y. Leg. 
 
 Obs. 139 233* 
 
 V. Chalker, 5 Conn. 311 ... 238' 
 
 V. Evans, 8 Pa. 13 471* 
 
 V. Hill, 1 Whart. 132 549* 
 
 V. Jamaica Pond Aqueduct 
 Corp. 133 Mass. 488.. 
 
 ....454^ 4563 
 
 V. Lyon, 90 N. Y. 668 220* 
 
 V. Vose, 19 Wend. 365 427'» 
 
 V. Western R. Corp. 13 
 
 Met. 99 654' *, 664' 
 
 V. Windsor, 12 Mees. & W. 
 
 68. 61* 
 
 Hartford Bridge Co. v. Union 
 Ferry Co. 29 Conn. 
 
 229 4823 
 
 Harthcock v. Swift Island Mfg. 
 
 Co. 72 N. C. 410 482* 
 
 Hartley v. Hallwell, 2 Stark. 212 606^ 
 V. Harriman, 1 Barn. & 
 
 Aid. 620 586*, 619^ 
 
 Hartt V. Evans, 8 Pa. 13 79* 
 
 Hartwell v. Mutual L. Ins. Co. 
 
 50 Hun, 497 422' ^, 423^ 
 
 Hartzallt). Sill, 13 Pa. 248 547^ 
 
 Harvard College v. Stearns, 15 
 
 Gray, 1 75*, 474^ 
 
 Harwood v. Tompkins, 24 N. J. 
 
 L. 425 1763 
 
 Haskell v. New Bedford, 108 Mass. 
 
 208 292*, 
 
 322', 326*5, 327*5 8, 318' 
 V. New Bedford, 108 Mass. 
 
 208. 216 468* 
 
 Hassenver v. Micliigan C. R. Co. 
 
 48 Mich. 204 ... 81 
 
 Hasson v. Oil Creek & A. R. R. 
 
 Co. 8Phila. 556 265' 
 
 Hastings v. Livermore, 15 Gray, 
 
 13.. 575* 
 
 Hatch V. Dwight, 17 Mass. 289 
 
 571', 5315
 
 xlviii 
 
 TABLE OF CASES. 
 
 Hatch V. D wight, 17 Mass. 889, 
 
 296 455" 
 
 V. Vermont C. R. Co. 28 
 
 Vt. 143 75^ 79'^ 4753 
 
 Hathaway v. Tinkhara, 148 Mass. 
 
 85 624' 
 
 Hauch V. Hernandez, 41 La. Ann. 
 
 992 .... 645'^ 
 
 Haugh's App." lb2"Pa.'42"''28"7^ 288^ 
 Haughey v. Hart, 62 Iowa, 96... 
 
 121', 593' 
 
 Haupt's Appeal, 125 Pa. 222..-. 453 
 Havens v. Klein, 51 How. Pr. 82. 191-2 
 Havcrsticli v. Sipe, 33 Pa. 368... 180'^ 
 Hawkes v. Kennebeck, 7 Mass. 
 
 461, 463 339' 
 
 Hawkesworth v. Thompson, 98 
 
 Mass. 77 . 124' 
 
 Hawkins ?j. Cooper, 8'CarV& P.473 35^ 
 Hawkins Point Lighthouse Case, 
 
 39 Fed. Rep. 77 561" 
 
 Hawley v. Cramer, 4 Cow. 717-. 242' 
 Hay v. Cohoes Co. 2 N. Y. 159. 
 
 ?,9^ 439' 
 
 V. Cohoes Co. 3 Barb. 48. 79' 
 Hayden v. Dutcher, 31 N. J. Eq. 
 
 217 179^ 180^ 
 
 T. Noyes, 5 Conn. 391 
 
 .- 531', 549s 
 
 V. Skillings. 78 Me. 413. 3 
 
 New Eng. Rep. 174.. 
 
 241', 265* 
 
 Hayes 0. Bowman, 1 Rand. 417, 
 
 420 50P 
 
 V. De Vito, 141 Mass. 233, 
 
 1 New Eng. Rep. 749. 242* 
 V. Michigan C. R. Co. Ill 
 
 U. S. 228, 28 L. ed. 
 
 410 739. 658' 
 
 V. Waldron, 44 N. H. 580. 443« 
 1). Waldron, 44 N. H. 585. 288^ 
 Hayford v. Spokesfield, 100 Mass. 
 
 491 .577^ 578'2 8, 58P 
 
 Haynes v. Thomas, 7 Ind. 38 82' * 
 
 V. Wells, 26 Ark. 464.479*, 480' 
 
 Hays «. Hays, 19 La. 351. 295^ 
 
 T. Hinkleman, 68 Pa. 324. 395^ 
 
 v. Millar, 77 Pa. 238 613' 
 
 V. Miller, 6 Hun, 320.-642\ 645« 
 V. Miller, 6 Hun, 322, 70 N. 
 
 Y. 112 6472 
 
 Hayward v. Knapp, 23 Minn. 430 405' 
 Hazard 1). Robinson, 3 Mason, 
 
 272... .--.175', 574'* 8 
 
 Hazen v. Boston & M. R. Co. 2 
 
 Gray, 577, 580 241' 
 
 V. Essex Co. 12 Cush. 478 532' 
 Hazman v. Hoboken L. & I. Co. 
 
 2 Daly, 130, 50 N. Y. 
 
 53 488\ 489* 
 
 Healy v. Chicago & .J. R. Co. 2 
 
 111. App. 435 377' 
 
 Heartt v. Kruger, 121 N. Y. 386, 
 
 9 L. R. A. 135 
 
 217', 219.-^ 2233, 573*, 575' 
 
 Heath v. Richer, 2 Me. 72 593=' 
 
 Hedges v. 3Iadison Count}', 6 111. 
 
 567.. 3393 
 
 Heeg V. Licht, 80 N. Y. 579 10« 
 
 V. Licht, 80 N. Y. 582.... 70' 
 Heeney v. Sprague, 11 R. I. 456. 
 
 103', 114', 6623 
 
 Heilbron v. Fowler Switch Canal 
 
 Co. 75 Cal. 426.410* ^, 450* 
 v. 76 Land & Water Co. 80 
 
 Cal. 189 410^ 4505, 4513 
 
 Heine v. Merrick, 41 La. Ann. 
 
 194 ... 216' 2 
 
 Heinlen v. Fresno Canal & I. Co. 
 
 68 Cal. 35... 459* 
 
 Helena v. Thompson, 29 Ark 569 332' 
 Hemphill «. Boston, 8 Cush. 195. 
 
 243', 265* 
 
 Hendershott v.Ottumwa, 46 Iowa, 
 
 658 2922 
 
 Henderson v. Cent. Pass. R. Co. 
 
 21 Fed. Rep. 358 579^ 
 
 V. Minneapolis, 32 Minn. 
 
 319 298' 
 
 V. New York C. R. Co. 78 
 
 N. Y. 423, 17 Hun, 
 
 344 90' 
 
 Hendricks «. Johnson, 6 Port. 
 
 (Ala.) 472 287" 
 
 «. Stark, 37 N. Y. 106.... 209' 
 
 V. Stark, 37 N. Y. 108 209^ 
 
 Henly v. Lvme, 5 Bing. 91, 3 
 
 Barn. & Ad. 77, 2 
 
 Clark &F. 331 
 
 338^340, 344* 
 
 Henn's Case, Sir W. Jones, 296.. 124* 
 Henrv v. Koch, 80 Ky. 391, 44 
 
 Am. Rep. 484 
 
 166', 171«, 2103 
 
 v. Koch, 22 Am. L. Reg. 
 
 N. S. 394 577« 
 
 V. Newburvport, 149 Mass. 
 
 582, 5 L. R. A. 179.... 
 78* 381 ' 
 
 390i,"4"6'8"'','"474',' 477^, 560^ 
 
 V. Sneed, 99 Mo. 407 183^ 
 
 V. Southern Pac. R. Co. 50 
 
 Cal. 183 654'" 
 
 Henry County Suprs. v. Winne- 
 bago Swamp Drain. 
 
 Co. 52 111. 299,454... 222« 
 Henry County Turnp. Co. v. Jack- 
 son, 86 Ind. Ill 128' 
 
 Henshaw v. Supervisors, 19 Cal. 
 
 150 479*
 
 TABLE OF CASES. 
 
 xlix 
 
 Hentz V. Long Island R. Co. 13 
 
 Barb. 646 72« 
 
 Hepburn's Case, 3 Bland, Ch. 98 463- 
 Heron v. The Marchioness, 40 
 
 Fed. Rep. 330 569^ ■• ^ 
 
 Herrick v. Gary, 65 111. 101 633- 
 
 V. Marshall, 66 :\Ie. 435 ..- 160^ 
 V. Sullivan, 120 Mass. 576. 144^ 
 Herrington v. Lansingburgh, 110 
 
 N. Y. 145 114' 
 
 Hervey v. Nourse, 54 Me. 256 135* 
 
 Hetrich v. Deachler, 6 Pa. 32 283' 
 
 Hetlrick v. Page, 82 N. C. 65 ... 535« 
 Hewes v. McNamara, 106 Mass. 
 
 281 608 
 
 Hewey ». Nourse, 54 Me. 256... 
 
 645-, 664' 
 
 V. Nourse, 54 Me. 259.645«, 647' 
 Hewison v. New Haven, 37 Conn. 
 
 475 - 34P 
 
 Hewlins v. Shippam, 7 Dow. & 
 Ry. 783, 5 Barn. & C. 
 
 221.. 420-* 
 
 Hexamer v. Webb, 101 N. Y. 377, 
 
 2 Cent. Rep. 439 100^ 
 
 Hickey v. Boston & L. R. Co. 14 
 
 Allen, 429 365- 
 
 Hickok V. Hine, 23 Ohio St. 523 
 
 79', 377^405', 412' 
 
 V. Hine, 23 Ohio St. 527 .. 376* 
 V. Pittsburgh, 16N.Y. 161 328-^ 
 Hicks V. Silliman, 93 111. 255.2953, 299* 
 Hide V. Thornborough, 2 Car. & 
 
 K.250 193' 
 
 Hieatt v. Morris, 10 Ohio St. 523 
 
 208', 213', 233^ 
 
 Higert v. Greencastle, 43 Ind. 574 264= 
 Higgins«. Dewey, 107 Mass. 494 
 
 363-, 6415, 
 
 6443, 6456_ 647'\ 652', 654^ 
 v. Flemington Water Co. 
 
 36 N. J. Eq. 538 456^ 
 
 v. Kusterer,-41 Mich. 318. 517' 
 
 Hill V. Boston, 122 Mich. 344 
 
 - .-HIO^ 3375, 341' 
 
 V. Boston, 122 Mass. 344, 
 
 358. 349- 
 
 V. Boston, 122 Mass. 358, 
 
 359 3433 
 
 1). Cincinnati, W. & M. R. 
 Co. 109 Ind. 511, 8 
 West. Rep. 47.. -.2983, 358' 
 V. Crosby, 2 Pick. 466 .... 234^ 
 «. Cutting, 113 Mass. 107 . 181' 
 V. Fond du Lac, 56 Wis. 
 
 242 69^ 
 
 «. Lord, 48 Me. 83, 97 .... 564^ 
 
 ©.North. 34Vt. 604 6343 
 
 «. Ontario, S. & H. R. Co. 
 
 13 U. C. Q. B. 503 ... 667^1 
 
 Hill V. Port Roval & W. C. R. 
 Co. (S. C.) 5 L. R. A. 
 
 351.. 656' 
 
 V. Sayles, 12 Cush. 454, 457 476^ 
 V. Smith, 27 Cal. 476, 32 
 
 Cal. 166. 413'^ 
 
 V. Smith, 39 Conn. 210 362* 
 
 V. United States, 39 Fed. 
 
 Rep. 172 380- 
 
 v. Warren, 2 Stark. 378... 233" 
 D. Wiusor, 118 Mass. 251.. 
 
 610^ 6563 
 
 Hills V. Miller, 3 Paige, 2.54, 257, 
 
 3N.Y.Ch.L.ed.l41.144 185' 
 Hinchliffe v. Kinnoul, 5 Bing. N. 
 
 C. 1 573« 
 
 Hinchman v. Paterson Horse R. 
 Co. 17 N. J. Eq. 75.. 
 
 ..76', 934 
 
 Hinckley v. Emerson, 4 Cow. 352 627'* 
 Hinet). Cushing, 53 Hun, 519... 651 
 v. Wooding, 37 Conn. 123 
 
 ..6O93, 621-' 
 
 Hine, The, v. Trevor, 71 U. S. 4 
 Wall. 555, 18 L. ed. 
 
 451 370 
 
 T. Trevor, 71 U. S. 4 Wall. 
 555, 561, ISL.ed. 451, 
 
 453.. 371' 
 
 V. Trevor 71 U. S. 4 Wall. 
 
 561, i^^ L. ed. 453.... 371« 
 Hines v. Charlotte, 72 Mich. 278, 
 1 L. R. A. 844, note.. 
 
 3103, 3355 
 
 V. Jarrett, 26 S. C. 480.421'^ 433-^ 
 V. Lockport, 50 N. Y. 2.36. 
 
 SW, 329*. 331', 343= 
 
 Hiss V. Baltimore & H. P. R. Co. 
 52 Md. 242, 36 Am. 
 
 Rep. 371 93^ 248- 
 
 Hitchens v. Shaller, 32 Mich. 496 181' 
 Hitchins v. Frostburg, 68 Md. 
 100, 6 Am. St. Rep. 
 
 422 290', 304* 
 
 V. Frostburg, 68 Md. 100, 
 10 Cent. Rep. 539.... 
 
 ....326*, 328', 349- 
 
 Hittinger*. Eames, 121 Mass. 540, 
 
 546.. 550« 
 
 Hoag V. Lake Shore & M. S. R. 
 
 Co. 85 Pa. 293 142' 
 
 V. Wallace, 28 N. H. 547.. 582- 
 Hobart v. Milwaukee R. Co. 27 
 Wis. 194, 9 Am. Rep. 
 
 461 ..m\ 2AS- 
 
 Hoboken v. Pennsylvania R. Co. 
 124 U. S. 656, 31 L. ed. 
 
 543 3843*5 
 
 Hoboken L. & I. Co. v. Hoboken, 
 
 36N. J. L. 549 71' 
 
 D
 
 1 
 
 TABLE OF CASES. 
 
 6I52 
 
 497- 
 297^ 
 513^ 
 
 Hobson V. Monteith, 15 Or. 251 . 388* 
 Hockett V. State, 105 Ind. 250, 2 
 
 West. Rep. 704 97' 
 
 Hodgdon v. Little, 14 C. B. N. 
 S. Ill, 16 C. B. N. S. 
 
 198 5323 
 
 Hodge «. Boothby, 48 Me. 71....378'' ' 
 Hodges V. Williams, 95 N. C. 331 
 
 3741 ^ 40436 
 
 Hodgkins v. Farrington, 150 
 Mass. 19, 5 L. R. A. 
 
 200. I872, 202^ 203' 
 
 Hodgkinsoa v. Ennor, 4 Best. & 
 
 S. 229 8^ 287', 288^ 
 
 Hoffman v. Kuhn, 57 Miss. 746.. 
 
 216^ 218, 5748 
 
 v. Savage, 15 Mass. 130 ... . 578* 
 e. Tuolumne County Water 
 
 Co. 10 Cal. 413.-432', 440= 
 Hogan v. Sharpe, 7 Car. & P. 
 
 755 
 
 Hogarth v. Jackson, Moody & .M. 
 
 58, 2 Car. & P 595... 
 
 Hogenson v. St. Paul, M. & M. R. 
 
 Co. 31 Minn. 224 
 
 Hogg V. Beerman, 41 Ohio St. 81- 
 
 98. 
 
 V. Zanesville Canal & Mfg. 
 
 Co. 5 Ohio, 410 370^6 
 
 Holbrook v. Utica & S. E. Co. 12 
 
 N. Y. 236 139', 147^ 
 
 Holden v. Chandler. 61 Vt 291_394''5 8 
 V. Robinson Mfg. Co. 65 
 
 Me. 215 
 
 377' '\ 389-, 404^ 412' 
 
 V. Shattuck, 34 Vt. 336 ... 596^ 
 Holford V. Bailey, 13 Q. B. 425, 
 
 444 
 
 V. Bailey, 18 L. J. N. S. Q. 
 
 B. 109 
 
 V. George, L. R. 3 Q. B. 
 
 689.. 
 
 V. Pritchard. 3 Exch. 793 . 
 Holland v. New York (C. P.) 30 
 
 N. Y. S. R. 850 
 
 Hollenbeck v. McDonald, 112 
 
 Mass. 249 573^ 
 
 Holliman v. Kingery, 81 Ga. 624. 599^ 
 Holman ». Townsend, 13 Met. 
 
 297, 299 75^ 347^, 474^ 
 
 Holmes v. Cortheli. 80 Me 31, 5 
 
 New Eng. Rep. 794... 79^ 
 T. Delaware, L. & vV. R. 
 
 Co. 89 iN. Y. 212 252< 
 
 V. Goring, 2 Bing. 76.. 219, 575' 
 V. North Eastern R. Co. 
 
 L. R. 6 Exch. 123.... 20^5 
 V. North Eastern R. Co. L. 
 R. 4 Exch. 254, affd. 
 L. R. 6 Exch. 123.203, ISO'' 
 
 . 4982 
 
 499^ 
 499^ 
 
 392* 
 
 Holmes v. North Eastern R. Co. 
 38 L. J. N. S. Exch. 
 
 161 568' 
 
 V. Oregon & C. R. Co. 5 
 
 Fed. Rep. 523, 538 370' 
 
 V. Seely, 19 Wend. 507 124* 
 
 Holsman v. Boiling Spring 
 Bleaching Co. 14 N. 
 
 J. Eq. 335 8^ 291*, 428^ 
 
 Holtc, Sargent, 15 Gray, 97 578^ 
 
 V. Somerville, 127 Mass. 
 
 408 908 
 
 Holyoke Water Power Co. v. Ly- 
 man, 82 U. S. 15 Wall. 
 500, 21 L. ed. 133 ... 
 
 382^8, 531', 532', 5343- 
 
 Homan v. Stanley, 66 Pa. 464 110' 
 
 Homer v. Everett, 15 Jones & S. 
 
 300 193 
 
 Homochitts River Comrs. ■». With- 
 ers, 29 Miss. 21. 454'^ 
 
 Honsee d. Hammond, 39 Barb. 89 287'^" 
 Hooker v. Cunimings, 20 Johns. 90 
 
 3773, 513', 532' 
 
 V. Cummings, 20 Johns. 90, 
 
 99-101 501^ 
 
 V. Cummings, 20 Johns. 90, 
 
 100 501- 
 
 V. Cummings, 20 Johns. 91, 
 
 11 Am. Dec. 249 416' 
 
 v. Cummings, 20 Johns. 
 
 99 355* 
 
 V. Cummings, 20 Johns. 100 503 
 V. New Haven & N. Co. 
 
 14 Conn. 146 435^ 
 
 Hooksett V. Concord R. Co. 38 
 
 N. H. 242 664> 
 
 Hooper v. Hobson, 57 Me. 273... 404«- 
 V. Wilkinson, 15 La. Ann. 
 
 497 2953 
 
 Hopkins v. Baltimore & P. R. 
 Co. 6 Mackey, 311. 12 
 
 Cent. Rep. 398.. 96' 
 
 V. Great ?f. R. Co. L. R. 3 
 
 Q. B. Div. 224 484«^ 
 
 V. Western P. R. Co. 50 
 
 Cal. 190 74'' 
 
 Hopkins Academy v. Dickinson, 
 
 9 Cush. 544 401'^ 
 
 V. Dickinson, 9 Cush. 548. 397^ 
 V. Dickinson, 9 Cush. 551 
 
 396^ 397'' 
 
 Horner v. Nicholson, 56 Mo. 220 233* 
 
 Horton v. Ipswich, 12 Cusli 488. 129* 
 
 V. Nashville, 4 Lea, 39, 40 
 
 Am. Rep. 4 330' 
 
 Hosher «. Kansas City, St. J. & 
 
 C.B. R. C0.6OM0. 333 361» 
 Hotel Asso. of Omaha v. Walter, 
 
 23 Neb. 280 193
 
 TABLE OF CASES. 
 
 li 
 
 Houck V. Wachter, 34 Md. 265.. 
 
 ..80' ^ l'26^ 4713, 475i^ 4761 
 
 V. Yates, 82 111. 179 389'^ 
 
 Houfe V. Fulton, 34 Wis. 608... 69i 
 Hough V. Doylestown, 4 Brewst. 
 
 833 453= 
 
 Hougliam v. Harvey, 33 Iowa, 203 473 
 Houusell V. Smyth, 7 C. B. N. S. 
 
 729. 119 
 
 V. Smyth. 29 L. J. N. S. C. 
 P. 303, 7 C. B. N. S. 
 
 731..- 
 
 23\ 26^ 27', 41\ 150^473' 
 House V. Metcalf, 27 Conn. 631.. 
 
 .44', 49^ 512, 52-2 
 
 Houston & T. C. R. Co. v. Clem- 
 
 mons, 55 Tex. 88 365-^ 
 
 V. Gorbett, 49 Tex. 573... 363' 
 V. Odum, 53 Tex. 343, 2 
 Am. & Eng. R. R. Cas. 
 503 94' 
 
 Hover v. Barkhoff, 44 N. Y. 113 
 
 342' ^ 662^ 
 
 Hovey v. Mayo, 43 Me. 322 305-' 
 
 Howard v. Fessenden, 14 Allen, 
 
 124 1633 
 
 V. Ingersoll, 54 U. S. 13 
 How. 381-427, 14 L. 
 
 ed. 189-209. 357« 
 
 V. Lee, 3 Sandf. 281 13P 
 
 Howard County v. Legg, 110 Ind. 
 
 479 115' 
 
 Howe V. Newmarch, 12 Allen, 49 233'^ 
 Howell ». Estes, 71 Tex. 690... 
 
 1913, 5732 
 
 v. King, 1 Mod. 190 238 
 
 V. M'Coy,3Rawle, 256.287^, 291-* 
 V. M'Coy, 3 Rawle, 269... 442 
 Howland v. Vincent, 10 Met. 371 
 
 118, 120 
 
 Hoy V. Sterrett, 3 Watts, 327 
 
 425, 426', 547« 
 
 Hoyt V. Hudson, 27 Wis. 656, 9 
 Am. Rep. 473. ...1483, 
 295', 299' 3, 3003, 3-)7« 361' 
 V. JeflEers, 30 Mich. 181.-654' = 
 Hubbard v. Bell, 54 111. 110.. 4033, 408-» 
 
 V. Bell, 54 111. 113 5503 
 
 ». Man well, 60 Vt. 235, 6 
 
 New Eng. Rep. 773... 398' 
 V. Russell, 24 Barb. 404. .. 56' 
 
 B. Town, 33 Vt. 295 ISO'^ 
 
 Hubbell V. Viroqua, 67 Wis. 343 3103 
 V. Warren, 8 Allen, 173... 160'' 
 V. Yonkers, 35 Hun. 319.. 313 
 V. Youkers, 104 N. Y. 434, 
 
 6 Cent. Rep. 499 
 
 1.38', 144^ 314' 
 
 Hubert i\ Groves. 1 Esp. 148.126^ 475^ 
 Huck V. Flentye, 80 111. 258 226 
 
 Hudgins v. Perry, 7 Ired. L. 102. 634* 
 Hudson V. Cuero L. & E. Co. 47 
 
 Tex. 58 479^ 480^ 4838 
 
 v. Roberts, 6 Exch. 697... 
 
 5866, 608^ 619* 
 
 V. Roberts, 6 Exch. 695- 
 699, 30 L. J. N. 8. 
 
 Exch. 299 6I93, 620* 
 
 V. Roberts, 6 Exch. 699, 20 
 
 L. J. N. S. Exch. 399. 605* 
 V. Wabash & W. R. Co. 33 
 
 Mo. App. 667 655* 
 
 Hudson River R. Co. v. Loeb, 7 
 
 Robt. 418 803, 4694 
 
 Hudson River Teleph. Co. v. 
 Watervliet Turnp. & 
 R. Co. 56 Hun, 67... 95* 
 Huff «. McCauley, 53 Pa. 206... 183* 
 Huffman v. San Joaquin County, 
 
 21 Cal. 430 3413- 
 
 Hughes •». Orange Co. M. Asso. 
 
 56 Hun, 396 109' 
 
 V. Percival, L. R. 8 App. 
 
 Cas. 443 39, 233» 
 
 V. Providence & W. R. Co. 
 
 3 R. I. 493 35' 
 
 V. Providence & W. R. Co. 
 
 2R. I. 508,513 389* 
 
 V. Quentin, 8 Car. & P. 703 635'* 
 Hulburt V. Leonard, Brayt. 201. 236* 
 Huling V. Chester, 19 Mo. App. 
 607, 3 West. Rep. 175 
 
 184'', 305', 330'^', 224* 
 
 Hull V. Missouri Pac. R. Co. 74 
 
 Mo. 298 145* 
 
 V. Westfield, 133 Mass. 433 349^ 
 Hulme V. Shreve, 4 N. J. Eq. 116 182' 
 Hume V. New York, 74 N.Y. 264 
 
 343', 343* 
 
 Humes v. Knoxville, 1 Humph. 
 
 403 305* 
 
 Humphrey v. Douglass, 10 Vt. 71 599'' 
 V. Irvin (Pa.) 4 Cent. Rep. 
 
 687 ll^ 91', 4333 
 
 Humphreys v. Woodstown, 48 N. 
 J. L. 588, 7 Cent. Rep. 
 
 114.. 71» 
 
 Humphries v. Brogden, 13 Q. B. 
 
 738, 743 438* 
 
 V. Brogden, 13 Q. B. 739.. 
 
 38', 190', 199* 
 
 V. Cousins, L. R. 2 C. P. 
 
 Div. 239 124', 273^ 
 
 Huff V. McCauley, 53 Pa. 206 184* 
 
 Hundhausen v. Bond, 36 Wis. 29 39* 
 
 Hunt «. Boonville, 65 Mo. 620.. 337* 
 
 V. New Y'ork, 20 Jones & 
 
 S. 198 342* 
 
 V. Peake, Johns. Eng. Ch. 
 
 705 198
 
 lii 
 
 TABLE OF CASES. 
 
 Hunt V. Pennsylvania R. Co. 51 
 
 Pa. 475 3232 
 
 Hunter v. Wanamaker (Pa.) 2 
 
 Cent. Rep. 70. 108' 
 
 Huntington v. Asher, 9K N. Y. 604 158* 
 V. Asher, 96 N. Y. 610.... li^8' 
 
 V. Asher, 96 N. Y. 613 185- 
 
 1). Breen, 77 Ind. 30 128« 
 
 V. Lowndes, 40 Fed. Rep. 
 
 635 - 4933 
 
 Huntress, The, 2 Ware, 83..370S 37P " 
 Huntsman v. Nichols, 116 Mass. 
 
 531 6202 
 
 Hurd 1). Curtis, 7 Met. 94, 115... 571' 
 
 V. Curtis, 19 Pick. 4^9 220* 
 
 V. Duiisniore, 63 N. H. 171 572' 
 V. Rutland & B. R. Co. 25 
 
 Vt. 116 591» 
 
 Hurdnoan v. North Eastern R. Co. 
 
 L. R. 3 C. P. Div. 168 299' 
 Hurley v. Mississippi & R. R. 
 
 Boom Co. 34 Minn. 
 
 143 81* 
 
 Hursts. Dulany, 84 Va. 701 541"^ 
 
 Huse V. Glover, 119 U. S. 543, 30 
 
 L. ed. 487 372', 397^ 
 
 Huson V. Young, 4 Lans. 63.243-, 245'' 
 Hussey v. Ryan, 64 ]\Id. 426. 2 
 
 Cent. Rep. 636 
 
 37^ 493, 51M04' \ 123- 
 
 Hussner v. Brooklyn City R. Co. 
 
 114 N. Y. 433 73S 247= 
 
 Huston V. Bybee, 17 Or. 140, 2 L. 
 
 R. A. 568-.-. 449= 
 
 Hutchinson v. Copestake, 9 C. B. 
 
 N. S. 863 255s 
 
 V. Granger, 18 Vt. 386 54.5* 
 
 V. Western ■& A. R. Co. 6 
 
 Heisk. 634 491- 
 
 Hutson V. New York, 9 N. Y. 163 
 
 330' 34''- 
 Huttemeier ?j' Aibro,"l8"N." Y. 50 166' 
 Huyett V. Philadelphia & R. R. 
 
 Co. 23 Pa. 373. 669* 
 
 Huzzey v. Field, 3 Cromp. M. & 
 
 R. 432, 442 482- 
 
 Hyatt V. Rondout, 44 Barb. 385.. 342= 
 Hyde v. Jamaica, 27 Vt. 443, 457 339^ 
 Hyde Park v. Borden, 94 111. 26. 184' 
 Hydraulic Works Co. v. Orr, 83 
 
 Pa. 332 31 
 
 Hyndsz). Shults, 39 Barb. 600... 
 
 ....167\ 419- 
 
 Idaho Springs v. Filteau, 10 Colo. 
 
 105. 332= 
 
 Illidge V. Goodwin, 5 Car. & P. 
 
 190. 193_..-367',611*, 61 3^ * 
 
 Illinois Cent. R. Co. v. Adams, 43 
 
 III. 474 639* 
 
 V. McClelland, 43 111. 355, 
 
 360 654', 666^ 
 
 Illinois Ins. Co. ». Littlefield, 67 
 
 111. 368 163*, 184* 
 
 Illinois River Packet Co. v. Peo- 
 ria Bridge Asso. 38 
 111. 467 3765« 
 
 Ilsley«). Stubbs, 5 Mass. 383 602« 
 
 Imlay v. Union Branch R. Co. 26 
 Conn. 249, 68 Am. Dec. 
 393 90' 
 
 Imler^j. Springfield, 55 Mo. 119. 805' 
 
 Indermaur v. Dames, L. R. 1 C. 
 P. 374, L. R. 3 C. P. 
 311 18', 30^ 150^ 568^* 
 
 Indiana, B. & W. R. Co. v. Barn- 
 hart. 115 Ind. 399, 13 
 West. Rep. 435 ....30*, 25^ 
 V. Dailey. 110 Ind. 75, 8 
 
 West. Rep. 516 136^ 
 
 V. Overman, 110 Ind. 538, 
 
 8 West. Rep. 385 654^ 
 
 Indianapolis v. Cook, 99 Ind. 10 128' 
 
 V. Emraelman. 108 Ind. 530. 
 
 6 AYest. Rep. 566 
 
 24', 28*, 29'^ 342' 
 
 ®. Huffer, 30 Ind. 235, 237 
 
 313, 3383, 3321 
 
 V. Kingsbury. 101 Ind. 300 81^ 
 V. Lawj-er, 38 Ind. 348 
 
 290^ 312' 
 
 V. Scott, 73 Ind. 196 331^' 
 
 V. Tate, 39 Ind. 383 312' 
 
 Indianapolis &C. R. Co. ». Means, 
 
 14 Ind. 30 147' 
 
 V. Paramore, 31 Ind. 143.. 648» 
 Indianapolis & St. L. R. Co. v. 
 
 Calvert, 110 Ind. 555, 
 
 9 West. Rep. 338 94* 
 
 «. Stout, 53 Ind. 143 253^ 
 
 Indianapolis, B. & W. R. Co. v. 
 
 Hartley, 67 111. 439, 16 
 
 Am. Rep. 634 73«, 90' 
 
 Indianapolis, C. & L. R. Go. «. 
 
 Harter, 38 Ind. 557... 593^ 
 Indianapolis Cable St. R. Co. v. 
 
 Citizens St. R. Co. 
 
 (Ind.) 8 L. R. A. 539, 
 
 and note 88' 
 
 Indianapolis, P. & C. R. Co. v. 
 
 Pitzer, 109 Ind. 179- 
 
 188, 7 West. Rep. 396. 657^ 
 Ingals V. Palmondon, 75 111. 118. 
 
 166'. 171«, 20r, 208' 
 
 V. Palmondon, 75 111. 133. 309' 
 
 Inge V. Murphy, 10 Ala. 885 443* 
 
 Ingersoll v. Stock bridge & P. R. 
 
 Co. 8 Allen, 438 664'
 
 TABLE OF CASES. 
 
 iiii 
 
 Inglea v. Bringhurst. 1 U. S. 1 
 
 Dalf. 341, 1 L. e(i.l67. 222^ 
 Ingraham v. Camden & R. Water 
 
 Co. 82 Me. 335 257' 
 
 1). Hough, 1 Jones, L. 39.. 
 
 .- 2306, 2308 
 
 V. Hutchinson, 2 Conn. 584 425^ 
 V. Wilkinson. 4 Pick. 268, 
 
 16 Am. Dec. 342 
 
 .377-\ 397-«5 
 
 V. Wilkinson, 4 Pick. 268, 
 
 273.--. - 397' 
 
 «. Wilkinson, 4 Pick. 273, 
 
 not(Sl,3 5303,5315 
 
 Ingram v. Treadgill, 3 Dev. L. 59 SOP 
 Inland Fisheries Comrs. v. Holy- 
 
 oke Water Power Co. 
 
 104 Mass. 446, 6 Am. 
 
 Rep. 247....501^ 533', 534^ 
 Inman d. Tripp, 11 K. I. 520, 23 
 
 Am. Rep. 520.. 
 
 291=, 292^ 3045 
 
 Innis V. Cedar Rapids, I. F. & N. 
 
 W. R Co. 76 Iowa, 
 
 165, 2L. R. A. 283.-. 473 
 Iron Mountain R. Co. v. Bing- 
 ham, 87 Tenn. 522, 4 
 
 L. R. A. 622. 35^ 
 
 Iron R. Co. v. Mowery, 36 Ohio 
 
 St. 418 1555 
 
 Irvin V. Wood, 4 Robt. 138 ..35^ lOS-* 
 Irvine «. Wood, 51 N. Y. 224 
 
 45^ 48, 523, 3334 
 
 Irwin V. Brown (Tenn.) 12 S. W. 
 
 Rep. 340. 405', 406^ 
 
 V. Fowler, 5 Robt. 482-73'°, 110' 
 V. Dixion, 50 U. S. 9 How. 
 
 10, 13 L. ed. 25.77\ 79', 236^ 
 Ivay V. Hedges, L. R. 9 Q. B. 
 
 Div. 80 62« 
 
 Iveson V. Moore, 1 Ld. Raym. 486 70'' 
 Ivinnev v. Stocker, L. R. 1 Ch. 
 
 App. 396 574' 
 
 Ivory V. Deerpark, 116 N. ¥.476 31^ 
 
 J. 
 
 •Jackman v. Arlington Mills, 137 
 
 Mass. 277, 283.. 348* 
 
 Jackson v. Allegheny, 41 Fed. 
 
 Rep. 886 392' 2 
 
 ®. Arlington Mills, 137 
 
 Mass. 277 45 
 
 «;. Babcock, 4,John8. 419-. 185* 
 ■e. Castle, 80 Me. 119, 5 
 New Eng. Rep. 857.. 
 
 75^ 102^ 
 
 V. Kiel, 13 Colo. 378, 6 L. R. 
 
 A. 254 822 
 
 V. Lewis, Cheves, L. 259.. 531*^ 
 
 Jackson v. Morris. 1 Denio, 199. 601* 
 V. Rutland & B. R. Co. 25 
 
 Vt. 150 241» 
 
 V. St. Louis, I. M. & S. R. 
 
 Co. 74 Mo. 526 636* 
 
 I). Smifhson, 15 Mees. «& 
 
 W. 561, 563. 
 
 605'^ 619' 3 5, 620<^ 
 
 V. Trullinger, 9 Or. 397... 158» 
 .Jacksonville v. Lambert. 62 III. 
 
 519 292'^ \ 322', 326» 
 
 Jacksonville & S. R. Co. v. Kid- 
 der, 21 111. 131 89* 
 
 Jacksonville St. K. Co. r. Chap- 
 pell, 21 Fla. 175 362» 
 
 Jacobs, Re, 98 N. Y. 98 152^ 664* 
 
 V. Worrell, 15 Leg. Int. 
 
 139. 288" 
 
 Jaffe V. Harleau, 56 N. Y. 398.. 61 
 
 Jager ». Adams, 123 Mass. 26 103* 
 
 Jamaica Pond Aqueduct Corp. v. 
 
 Chandler, 9 Allen. 163 161' 
 V. Chandler, 9 Allen, 165- . 158* 
 V. Chandler, 121 Mass. 3.. 579' 
 James ». Plants, 4 Ad. & El. 749 
 
 574*5 
 
 Janes «. Jenkins, 34 Md. 1 2. 
 
 166', 171«'. 172* 
 
 Jansen v. Atchison, 16 Kan. 358 
 
 103', 1141 
 
 Janson v. Brown, 1 Camp. 41 626* 
 
 Jaques v. National E.xhil)it Co. 
 
 15 Abb. N. C. 250_... 74« 
 Jefferies v. Buncombe, 11 East, 
 
 226 15 
 
 JefEeris v. East Omaha Land Co. 
 134 U. S. 178, 33 L. 
 
 ed. 872 395' 
 
 V. Philadelphia, W. & B. 
 R. Co. 3 Houst. 447. 
 
 648^ 667', 609* 
 
 V. Philadelphia.W. &B. R. 
 
 Co. 3 Houst. 448 664' 
 
 Jeffers v. Jefifers, 107 N. Y. 650, 
 
 9 Cent. Rep. 875 
 
 281'^ 2973, 358' 
 
 Jeffersonville v. The John Shall- 
 
 cross. 35 Ind. 19 487* 
 
 Jeffries v. Hargi,s, 50 Ark. 65 269' 
 
 Jenkins v. Tinner, 1 Ld. Raym. 
 
 109 604*, 606*, 619* 
 
 Jennings, Ex parte, 6 Cow. 518. 
 
 ■ 403', 40.5', 452* 
 
 Ex parte, 6 Cow. 527, 543. 463* 
 Ex parte, 6 Cow. 537, 
 
 note 397* 
 
 V. Pennsylvania R. Co. 93 
 
 Pa. 337 648* 
 
 V. Van Schaick, 13 Daly, 
 
 438 73"
 
 liv 
 
 .TABLE OP CASES. 
 
 Jennings v. Van Schaick, 108 N. 
 Y.530,11 Cent.Rep.317 
 52^ 53' ^ lot*-, lie 
 
 Jennison v. Walker, 11 Gray, 423 
 
 580^* 
 
 Jerome v. Ross, 7 Johns. Cb. 322, 
 
 2 N. Y. Ch. L. ed. 308 77« 
 Jersey City v. Central R. Co. 40 
 
 N. J. Eq. 417, 4 Cent. 
 
 Rep. 327 70^ 
 
 Jersey City & B. R. Co. v. Jersey 
 
 Citv & H. Horse R. 
 
 Co." 20 N. J. Eq. 61.. 
 
 248-, 2512 
 
 Jessen v. Swei,eert, 66 Cal. 182. 49^, 51- 
 Jetter v. New York & H. R. Co. 
 
 3 Abb. App. Dec. 458 
 127S 6623 
 
 Jewett V. Jewett, 16 Barb. 150.- 
 
 571', 5802 
 
 Jochem v. Robinson. 66 Wis. 638, 
 1 L. R. A. 178, and 
 
 notes lOl''", 108% 124^ 
 
 V. Robinson, 72 Wis. 199.. 363^ 
 John Hancock M. L. Ins. Co. v. 
 Patterson, 103 Ind. 582, 
 ' 1 West. Rep. 124.. 172, 418« 
 Johnson v. Barber, 10 111. 425.... 044» 
 V. Belden, 47 N. Y. 130... 566» 
 V. Boston, 130 Mass. 452.. 453'^ 
 V. Conant, 64 N. H. 109, 3 
 
 NewEna:. Rep. 162.. 571 
 ■». Holyoke, 105 Mass. 80.. 637' 
 
 V. Jordan, 2 Met. 234 
 
 167', 169^ 3552, 419^ 
 
 v. Jordan, 2 Met. 239, 37 
 
 Am. Dec. 85 410', 455^ 
 
 «. Knapp, 150 Mass. 261.. 
 
 244«, 263* 
 
 V. Lewis, 47 Ark. 66 235' 
 
 V. McConnell. 80 Cal. 545. 
 
 i ose^'' 
 
 V. McMillan, 69" Mich. 36, 13 
 
 West. Rep. 740 61- 
 
 V. Patterson, 14 Conn. 1.. 
 
 17', 628' 
 
 V. Spear, 76 Mich. 139.... 19^ 
 
 «. Wing, 3 Mich. 163 592^ 
 
 Johnston v. District of Columbia, 
 
 118U.S.19, 30L.ed.75 328s 
 V. Jones, 66 U. S. 1 Bla.k. 
 209, 223, 17 L. ed. 117, 
 
 121 - 3975 ■> 
 
 Johnstown Cheese Mfg. Co. v. 
 Veghte, 69 N. Y. 16.. 
 
 280', 281' 
 
 Jolly V. Des Moines N. W. R. 
 
 Co. 72 Iowa, 759 91" 
 
 W.Terre Haute Draw Bridge 
 
 Co. 6 McLean, 237-. .3765 « 
 
 Jones V. Adams, 17 Nev. 84 442« 
 
 V. Bird, 5 Barn. & Aid. 837 89' 
 V. Clouser, 114 Ind. 387, 14 
 
 West. Rep. 286 602' 
 
 V. Festiniog R. Co. L. R. 
 
 3 Q. B. 733. 2708 
 
 V. Housatonic R. Co. 107 
 
 Mass. 261 2472 
 
 V. Johnson, 2 Ala. 746.-.. 48P 
 V. Johnston, 59 U. S. 18 
 
 How. 150, 15 L. ed. 
 
 320 397', 399% 4012 
 
 V. Keith, 37 Tex. 394 90' 
 
 V. New Haven, 34 Conn. 1 
 
 1233, 3202, 345' 
 
 «. New Haven, 34 Conn. 1, 
 
 13. 3413 
 
 V. Nichols, 46 Ark. 207, 55 
 
 Am. Rep. 575 118, 598' 
 
 V. Owen, 24 L. T. N. S. 
 
 587 6O72, 615» 
 
 V. Percival, 5 Pick. 485... 189' 
 1). Pettibone, 2 Wis. 308.. 4632 
 
 V. Powell, Hutt. 136 131' 
 
 V. Purcell. 36 Ohio St. 396 3892 
 V. Robertson, 116 111. 543, 
 
 3 West. Rep. 581 2582 
 
 V. Sherwood, 37 Conn. 466 626* 
 «. Soulard,65U. S. 24How. 
 
 41, 16 L. ed. 604 
 
 389*, 394« ', 397', 399«, 4012 
 
 D. State, 68 Md. 613 541^ 
 
 V. Weitershausen, 181 Pa. 
 
 62 547" 
 
 V. Western Vt. R. Co. 27 
 
 Vt. 399 273» 
 
 V. Williams, 11 Mees. & W. 
 
 176 6482 
 
 1). Witherspoon, 7 Jones, L. 
 
 555 - 5963 
 
 Jonesboro & F. Turnp. Co. v. 
 
 Baldwin, 57 Ind. 86.. 1262 
 Jordan v. Foster, 11 Ark. 141... 634^ 
 V. St. Paul, M. & M. R. 
 
 Co. (Minn.) 6 L. R. A. 
 
 573 295', 297* 
 
 V. Wyatt, 4 Gratt. 151 647- 
 
 Joslin V. Soues (Iowa) 45 N. W. 
 
 Rep. 917 257', 258' 
 
 Joy V. Bilzer, 77 Iowa, 73, 3 L. 
 
 R. A. 184 634» 
 
 V. Boston Pennv Sav. Bank, 
 
 115 Mass. 60- 209% 2232 
 
 Joyce V. Martin, 15 R. I. 558, 4 
 
 New Eng. Rep. 797... 
 
 44', 51', 53' 
 
 Judd V. Cushing, 22 Abb. N. C. 
 
 358, 375 231* 
 
 V. Fargo, 107 Mass. 264... 1252 
 Judge V. Cox, 1 Stark. 227.--6l9%620'
 
 TABLE OF CASES. 
 
 Iv 
 
 Judge V. Cox, 1 Stark. 285.. COS' \ 5S6« 
 V. Meriden, 88 Coun. 90.-. 330^ 
 Julia Bldg. Asso. v. Bell Telepb. 
 Co. 88 Mo. 258, 5 West. 
 
 Rep. 357 97' » 
 
 Julien V. Woodsmall, 82 Ind. 566 265 
 v. Woodsmall, 82 Ind. 568 158" 
 June V. Purcell, 36 Ohio St. 396. 412-* 
 Juniata, The, 93 U. S. 337, 23 L. 
 
 ed. 930 369' - 
 
 Justice V. Logansport, 101 Ind. 326 334;'' 
 
 Jutte V. Hughes, 67 K Y. 267-.. 270' 
 
 V. Hughe-s, 67 N. Y. 268.. 
 
 .: 292«, 326^ 
 
 K. 
 
 Kable v. Hobein, 30 Mo. App. 472 
 
 642^ 644', 645", 661* 
 
 Kalbfleisch v. Long Island R. Co. 
 102 N. Y. 520, 3 Cent. 
 
 Rep. 662 665* « 
 
 Kalis V. Shattuck, 69 Cal. 593... 
 
 . 41*, 49% 51- ^ 62' 
 
 Kane v. Bolton, 36 K J. Eq. 21. 577* 
 V. MetropolitanElev. R. Co. 
 (Ct. App.) 34 N. Y. S. 
 
 R. 876, 883 359-^ 
 
 V. State, 70 Md. 546 54l« 
 
 Kane County v. Herrington, 50 111. 
 
 232 184' 
 
 Kankakee & S. R. Co. v. Horan, 
 
 131 111. 288 467* 
 
 Kansas Cent. R. Co. v. Allen, 22 
 Kan. 285, 31 Am. Rep. 
 190 ...240', 241', 265*, 597' 
 V. Fitzsimmons, 22 Kan. 687 29' 
 V. Fitzsimmons, 22 Kan. 
 
 686, 31 Am. Rep. 203. 585> 
 Kansas City, F. S. & G. R. Co. v. 
 
 Owen, 25 Kan. 420... 66U* 
 Kansas Pac. R. Co. v. Brady, 17 
 
 Kan. 380 6^9* 
 
 V. Miller, 2 Colo. 442 155" 
 
 Kapper «. Appel, 14 111. App. 170 9' 
 KaufEman®. Griesemer, 26 Pa. 407 442^ 
 V. Griesemer, 26 Pa. 408.. 297* 
 V. Griesemer, 26 Pa. 415, 
 
 note 295*, 299^ 
 
 Kavanagb v. Brooklyn, 38 Barb. 
 
 2S2 3055 
 
 Kean v. Ascb, 27 N. J. L. 57 577* 
 
 V. Stetson, 5 Pick. 492, 495 
 
 .560', 564' 
 
 Kearney v. London, B. & S. C. R. 
 Co. L. R. 5 Q. B. 411, 
 
 L. R. 6Q. B. 759 147^ 
 
 T. London, B. &; S. C. R. 
 
 Co. L. R. 6 Q. B. 759- 156« 
 
 Kearney v. London, B. & S. C. R. 
 
 Co. L. R. 6 Q. B. 760. 105' 
 Keates v. Earl of Cadogan, 10 C. 
 
 B. 591. 61* 
 
 Keating d. Korfbage, 88 Mo. 524, 
 
 4 West. Rep. 569 
 
 184", 205' 5, 215', 2^^ 
 
 Keeble®. Hickerimrill, 11 Mod. 74, 
 130, 3 Salk. 9, Holt, 14, 
 
 17, 19... 505 
 
 «. Hickerin gill, 11 East, 574 527 
 Keefe v. Boston & A. R. Co. 142 
 Mass. 251, 2 New Eng. 
 
 660' W 
 
 V. Milwaukee & St. P. R. 
 
 Co. 21 Minn. 207 29' 
 
 Keenan v. Cavanaugh, 44 Vt. 268 592" 
 V. Gutta Percba & R. Mfg. 
 
 Co. 46 Hun, 544.. 617', 622' 
 Keigbtlinger v. Egan, 65 III. 235 
 
 605S 606'", 
 
 617', 619^ 620-, 630*, 631' 
 
 Keiper «. Klein, 51 Ind. 316 180^ 
 
 Keitb V. Brockton, 136 Mass. 
 
 119 295' 
 
 Kellinger v. Forty-Second St. &: G. 
 St. F.'R. Co 50 N. Y. 
 
 206 93* 
 
 Kellogg V. Chicaffo & N. W. R. 
 
 Co. 26^ Wis. 223 665' 
 
 V. Chicago & N. W. R. Co. 
 
 26 Wis. 224 652' 
 
 V. Chicago & N. W. R. 
 Co. 26 Wis. 227, 7 Am. 
 
 Rep. 71... 241' 
 
 V. Chicago & N. W. R. Co. 
 
 26 Wis. 280... 608' 
 
 V. Ely, 15 Ohio St. 66 485' 
 
 T. Smith, 26 N. Y. 18 242' 
 
 Kelly «. Bennett (Pa.) 7 L. R. A. 
 
 120 15-, 26' 
 
 ■V. Doody, 116 N. Y. 575.. 
 
 101^ 115- 
 
 V. Dunning, 43 jST. J. Eq. 62, 
 
 8 Cent. Rep. 600 
 
 163*5, 
 
 168*, 169*, 186-, 235^ 241^ 
 V. Meeks, 87 Mo. 396, 2 
 
 West. Rep. 507 ei'l^ 
 
 «. Southern Minn. R. Co. 
 
 28 Minn. 98 252' 
 
 V. Tllton, 2 Abb. App. Dec. 
 
 495, 3 Keves, 263 
 
 586'', 617-, 631\ 6193 
 
 Kelsey v. Purmau, 36 Iowa, 614. 262" 
 Kemmish v. Ball, 30 Fed. Rep. 
 
 759.. 633' 
 
 Kenison «. Arlington, 144 Mass. 
 456, 4 New Eng. Rep. 
 340. 456', 458»
 
 Ivi 
 
 TABLE OF CASES. 
 
 Kennedy ». Hannibal & St. J. R. 
 
 Co. 63 Mo. 99 646 
 
 V. McCollam, 34 La. Ann. 
 
 568 235^ 
 
 v. New York, 73 N. Y. 365 
 
 314^ 569« 
 
 V. Ryall, 67 N. Y. 379.... 488* 
 Kennison v. Beverly, 146 Mass. 
 
 467, 6 New Eng. Rep. 
 
 133-. 350 
 
 Kennon v. Gilmer, 5 Mont. 257-- 620^ 
 V. Gilmer, 131 U. S. 22, 33 
 
 L. ed. 110 605^ 610- 
 
 Kensington v. Wood, 10 Pa. 93, 95 838' 
 Kent 6-. Waite, 10 Pick. 138.... 184-' 
 Kentucky Cent. R. Co. v. Talbot, 
 
 78 Ky. 621 147' 
 
 V. Tbnmas, 79 Ky. 160... 365'^ 
 Kenyon v. Hart, 6 Best & S. 249 528 
 V. Indianaoolis, 1 Wils. 
 
 (Ind.) 129---- 342' 
 
 Keokuk v. Independent Dist. 53 
 
 Iowa, 353 114' 
 
 Kerr v. O'Connor, 63 Pa. 341 
 
 594'o, 626^ 627* 
 
 Kerwbaker v. Cleveland & C. R. 
 
 Co. 3 Ohio St. 179--. 591 
 Kesee v. Chicago & N. W. R. Co. 
 
 30 Iowa, 78 665*, 666' 
 
 Ketchum v. Newman, 116 N. Y. 
 
 422 202^ 
 
 Keteltas v. Penfold, 4 E. D. 
 
 Smith, 122 204*, 223 
 
 Keyes v. Minneapolis <fc St. L. R. 
 
 Co. 36 Minn. 290 636 
 
 Keyport & M. P. Steamboat Co. 
 
 V. Farmers Transp. 
 
 Co. 18 N. J. Eq. 13-- 378* 
 Keysar v. Covell, 62 N. H. 283. 426^ 
 Keystone Bridge Co. v. Summers, 
 
 13 W. Va. 485...-77^ 247'^ 
 Khron v. Brock, 144 Mass. 516, 
 
 4 New Eng. Rep. 424 
 
 426... 9--', 2V, 1043, 105, 105"' 
 
 Kidd«. Laird, 15 Cal. 161 445' 
 
 V. Laird, 15 Cal. 181 262-^ 
 
 Kidder v. Dunstable, 7 Grav, 104 
 
 365*, 366, 367, 656' 
 
 Kieffer v. Imhoff, 26 Pa. 438 
 
 164',166i,167M72-,573^ 574^ 
 
 Kier«. Peterson, 41 Pa. 357 80'^ 
 
 Kiernan v. Jersey Citv, 50 N. J. 
 
 L. 246, 11 "Cent. Rep. 
 
 551 332* ^ 
 
 Kies V. Erie (Pa!)" 26"W. K C.' Vl'2 
 
 334S 3353 
 
 Kightlinger v. Egan, 75 111. 141.. 586« 
 Kilburn v. Adams, 7 Met. 33.... 427" 
 Kiley v. Kansas City, 87 Mo. 103, 
 
 2 West. Rep. 201.3103*. 311^ 
 
 Kilgour V. Ashcom, 5 Hs.r. & J. 
 
 82 175' 
 
 Killion». Power, 51 Pa. 429 256^ 
 
 King V. American Transp. Co. 1 
 
 Flipp. 1 667* 
 
 V. Kline, 6 Pa. 318.. 627** 
 
 V. McDermott, 2 Phila. 175 613' 
 V. Morris & E. R. Co. 18 
 
 N. J. Eq. 397 35* 
 
 King v. Murphy, 140 Mass. 254, 1 
 
 New Eng. Rep. 434.. 
 
 571', 576*, 577'^ 578^ 
 
 V. Sheffield, 2 T. R. 106.. 68* 
 V. Thompson, 87 Pa. 365.. 129'' 
 Kings County F. Ins. Co. v. 
 
 Stevens, 101 N. Y. 411, 
 
 2 Cent. Rep. 430 174* 
 
 Kingsland v. Tucker, 115 N. Y. 
 
 574 23V 
 
 Kingsley v. Johnson, 49 Conn. 462 635* 
 Kingston v. Horner, 1 Cowp. 102, 
 
 108.. 178 
 
 Kinnaird». Standard Oil Co.(Ky.) 
 
 7L. R. A. 451....:.. 
 
 - r\ 8\ 155, 
 
 271', 274, 276', 278', 288^ 
 Kinsley ». Mor.se, 40 Kan. 588.. 127' 
 Kirby «. Bovlston Market Asso. 
 
 14"^ Gray, 249 
 
 41*, 107*, 114', 1483' 
 
 Kirkpatrick v. Brown, 59 Ga 450 
 
 184% 577«^ 
 
 V. Peshine, 24 N. J. Eq. 
 
 206. _ 2291 
 
 Kirkwood v. Newburg, 45 Hun, 
 
 323 464» 
 
 Kirschmer ». Western & A. R. Co. 
 
 67 Ga. 760 236"" 
 
 Kirst V. Milwaukee, L. S. & W. 
 
 R. Co. 46 Wis. 489.. 147* 
 Kistner ». Indianapolis, 100 Ind. 
 
 210 334* 
 
 Kitteringham «. Sioux Citv & P. 
 
 R. Co. 62 Iowa, 285.. 139^ 
 Kittle t\ Fremont, 1 Neb. 329... 79' 
 Kittredge v. Elliott, 16 N. H. 77 
 
 6i7^ 619'' 
 
 ®. Elliott, 16 N. H. 82... 605'' » 
 Klander v. McGrath, 35 Pa. 128 233" 
 Klein «. Gehrung, 25 Tex. Supp. 
 
 232. 180* 
 
 Knapp V. Warner, 57 N. Y. 688. 88' 
 
 Knauss v. Brua, 107 Pa. 85 49'. 61 
 
 Knickerbocker Ice Co. ®. Schultz. 
 
 116 N. Y. 382. 385^ 
 
 Knight «. Abert, 6 Pa. 472 
 
 23', 25-, 263, 27', 150* 
 
 V. Heaton, 22 Vt. 480 580^ * 
 
 V. New Enaland Worsted 
 
 Co. 2 Cush. 271 163*
 
 TABLE OF CASES. 
 
 Ivii 
 
 Knorr v. Wagoner, IG Ind. 414.. 600> * 
 Knox V. Cbaloner, 42 Me. 150 
 
 ..404^ 550'3 
 
 V. New York, o4 Barb. 405, 
 
 38How.Pr. 67 247^ 
 
 T. Tucker, 48 Me. 373 593^ 
 
 Knoxville v. Bell, 12 Lea, 157... 
 
 342>, 343-' 
 
 Koupfle V. Knickerbocker Ice Co. 
 
 84 N. Y. 488. 103' 
 
 Kobs V. Minneapolis, 22 Minn. 
 
 159 . 297* 
 
 Kokomoc. Mahan,"i00 Ynd''242 70' 
 
 Koney «. Ward, 2 Daly, 295 617* 
 
 Koons V. St. Louis & I. M. R. Co. 
 
 65 Mo. 592 29' 
 
 Koopman v. Blodgett, 70 Mich. 
 
 610, 14 West. Rep. 909 546- 
 Kornegay v. White, 10 Ala. 255 635 
 Kosmak v. New York, 117 N. Y. 
 
 361 333'^ 
 
 Kramer v. Carter, 136 Mass. 504. 160* 
 Krauz v. Baltimore, 64 Md. 491, 
 
 2 Cent. Rep. 629 33l« 
 
 Kraut V. Crawford, 18 Iowa. 549 396' 
 Krehl v. Burrill, L. R. 7 Ch. Div. 
 
 551 577® 
 
 Kripp ». Curtis^?! Cal.'62V.V.'.Vl733-» 
 Krippuer v. Biebl, 28 Minn. 139.. 645'^ 
 Kueckenti. Voltz, 110 111. 265.. 184'^ 
 Kuhn V. Jewell, 32 N. J. Eq. 647 654' 
 Kyle V. Texas & N. O. R. Co. 
 
 (Tex) 4 L. R. A. 276, 
 
 note. 18r 
 
 Kyne v. Wilmington & N. R. Co. 
 
 (Del.) 13 Cent. Rep. 
 
 391 363=* 
 
 Kynoch v. The S. C. Ives, Newb. 
 
 205 .-370*, 371* 
 
 Lackland «. North Missouri R. Co. 
 
 31 Mo. 180 82' 
 
 Laclaire x. Davenport, 13 Iowa, 
 
 210 152^ 
 
 Lacour^. Mayor, 3 Duer, 406. .. 311* 
 Lacy V. Arnett, 33 Pa. 169 
 
 1673, 182', 419- 
 
 Ladd V. Boston (Mass.) 24 N. E. 
 
 Rep. 858 181' 
 
 V. Chotard, 1 3Iinor, 366.. 486'' 
 Ladies Seamen's Friend Soc. v. 
 
 Halstead, 58 Conn. 144 
 
 384', 395*, 559« 
 
 Lafayette v. Holland, 18 La. 286. 396' 
 V. Timberlake, 88 Ind. 330. 310^ 
 Lafayette, .M . & B. R. Co. v. Mur- 
 
 dock, 68 Ind. 137 90' 
 
 Laflin &R. Powder Co.r.Tearney, 
 
 131 111. 322, 7 L. R. A. 
 
 262 10«, 650* 
 
 Laherty v. Hogan, 13 Daly. 533. 621^ 
 Lahr v. Metropolitan Elevated R. 
 
 Co. 104 N. Y. 268, 6 
 
 Cent. Rep. 371 ..84-,91^'fr 
 Lakeman «.Burnham, 7 Gray, 437 
 
 495', 536' 
 
 Lake Shore & M. S. R. Co. v. Pin- 
 chin, 112 Ind. 592.... 128" 
 V. Rosenzweitr. 113 Pa. 519, 
 
 4 Cent. Rep. 712 657*^ 
 
 Lakeside Ditch Co. v. Crane, 80 
 
 Cal. 181 448^ 451^ 
 
 Lake View v. LeBahn, 120 111. 92, 
 
 6 West. Rep. 786 76* 
 
 «. Rose Hill Cemetery Co. 
 
 70 111. 191 '...-. 456' 
 
 Lamar v. Marshall County Ct. 
 
 Comrs. 21 Ala. 772... 484^ 
 Lamb v. Reclamation Dist. No. 
 
 108, 73 Cal. 125 391^ 
 
 V. Rickets, 11 Ohio, 311... 399"> 
 Lambert v. Bessey, Sir T, Raym. 
 
 421 270', 277^ 
 
 Lammers ®. Nissen, 4 Neb. 245 . . 397'* 
 Lammott «. Ewers, 106 Ind. 310, 
 
 4 West. Rep. 553 
 
 ..167^ 4193, 420* 
 
 Lampman v. J\Iilks, 21 N. Y. 505 
 164', 
 
 166', 168*, 171', 186, 186' 
 V. Milks, 21 N. Y. 506. ... 174-^ 
 V. Milks, 21 N. Y. 507.... 
 
 175',205\ 217'. 241* 
 
 Lamprey v. Nelson, 24 Minn. 304 405' 
 Lancaster v. Conn. Mut. L. Ins. 
 
 Co. 92 Mo. 460, 10 
 
 West. Rep. 409.... 39', 233* 
 Lancaster Ave. Imp. Co.t'.Rhoads, 
 
 116 Pa. 377, 8 Cent. 
 
 Rep. 214...- 323* 
 
 Lance's App. 55 Pa. 25 91®- 
 
 Lancey v. Clifford, 54 Me. 487, 92 
 
 Am. Dec. 561... 
 
 404'', 411, 413* 
 
 Landru®. Lund, 38 Minn. .538... 108^ 
 Lane^J. Atlantic Works, 111 Mass. 
 
 136, 139, 141 
 
 367', 6123, 6.56* 
 
 Langan v. Atchison, 35 Kan. 318 102* 
 Langdon t. Doud, 10 Allen, 433. 183* 
 V. New York. 93 N. Y. 129 SS*- 
 Langmaid v. Higffins, 129 Mass. 
 
 353. 358 - 255' 
 
 Lansing v. Smith. 8 Cow. 146, 4 
 
 Y>"end. 9.75*, 80', 469*, 475^ 
 V. Stone. 37 Barb. 15. 
 
 641' ^ 649*
 
 ivui 
 
 TABLE OF CASES. 
 
 Lansing v. Toolan, 37 Mich. 152.. 330' 
 V. Wiswall, 5 Denio, 213, 5 
 
 How. Pr. 77... 
 
 .--.75^ 80^ 234^ 469*, 475^ 
 Lapere«. Luckey, 23 Kan. 534. . 180- 
 Lapham V. Curtis, 5 Yt. 371 
 
 ..272', 431', 432', 440', 546^ 
 Laredo v. Martin, 52 Tex. 54S._. 480^ 
 Larkin v. Saginaw Co. 11 Mich. 
 
 88 339^ 
 
 Larmore v. Crown Point Iron Co. 
 
 101 N. Y. 391, 2 Cent. 
 
 Eep. 409 20% 24^ 
 
 Larrabee t).PeabodY,128 Mass. 561 345" 
 Larue ». Farren Hotel Co. 116 
 
 Mass. 67 53-, 62", 68- 
 
 Lasala v. Hoi brook, 4 Paige, 169, 
 
 3 N. Y. Ch. L. ed. 390, 
 
 25 Am. Dec. 524 
 
 38', 196', 199', 3002 
 
 Lattimer v. Livermore, 72 N. Y. 
 
 174 577« 
 
 Lattimore v. Davis, 14 La. 161... 295'' 
 Laughter v. Pointer, 5 Barn. & C. 
 
 547, 560 149^ 
 
 Laverone «. Manoianti. 41 Cal. 
 
 138, 10'"Am. Rep. 269. 
 
 587', 6073. 617' 619' 
 
 Lavery v. Hannigan, 20 Jones & 
 
 S. 463 99' 
 
 Lawler v. Baring Boom Co. 56 
 
 Me. 443 404« 
 
 Lawrence v. Fairhaven, 5 Gray, 
 
 110 1- 474' 
 
 V. Great Northern R. Co. 
 
 16Q. B. 643.. SO' 
 
 ^. Obee, 3 Camp. 514 571' 
 
 V. Whitney, 115 X. Y. 410, 
 
 5L. R. A. 417... -420% 459« 
 Lawsone.Menasha Wooden-Ware 
 
 Co. 59 Wis. 393. 477' 
 
 Lawtoa v. Comer, 7 L. R. A. 55, 
 
 40 Fed. Rep. 480.-372', 408^ 
 
 t\ Giles, 90 N. C. 374 648^ 
 
 «. Rivers, 2 McCord, L.445, 
 
 13 Am. Dec. 741, 746, 
 
 note ...167',168« 
 
 «. Steele. 119 N. Y. 226, 7 
 
 L.R. A. 134 
 
 ..-495% .531-, 533. 535', 541« 
 V. Ward, 1 Ld. Raym. 75.. 238- 
 Leader v. Mo.xon, 3 Wilson, 461. 89^ 
 Leake Co. Suprs. v. McFadden,57 
 
 Miss. 618 480^ 
 
 Learner. Bray, 3 East, 595 607 
 
 Learned v. Tansreman, 65 Cal. 
 
 334..-"... 443'" 
 
 Leary v. Cleveland, C. C. & I. R. 
 
 Co. 78 lud. 323 24' 
 
 V. Woodruff, 4 Hun, 99... 567« 
 
 Leavenworth v. Casey, McCahon 
 
 (Kan.) 124 305% 306' 
 
 Leavenworth, T. & S. W. R. Co. 
 
 V. Forbes, 37 Kan. 448 599* 
 Leavitt«. Fletcher, 10 Allen, 119 QV 
 LeBarron v. East Boston Ferry 
 
 Co. 11 Allen, 312.. 138, 4885 
 Leconfield v. Lonsdale, L. R. 3 
 
 C. P. 657 5495 
 
 Ledyard v. Ten Eyek, 36 Barb. 
 
 102 512' 
 
 V. Ten Eyck, 36 Barb. 125. 378-' 
 Lee V. Minneapolis, 22 Minn. 13. 298' 
 V. Riley, 34 L. J. N. S. C. 
 
 P. 212. 591% 604' 
 
 V. Smith. 42 Ohio St. 4.58. 663^ 
 1). Vacuum Oil Co. 54 Hun, 
 
 156 35* 
 
 Leemfield «. Lonsdale, L. R. 5 C. 
 
 P. 657 53r 
 
 Le Fevre v. Le Fevre, 4 Serg. & 
 
 R. 241 183« 
 
 Le Forest v. Tolman, 117 Mass. 
 
 109 5866 
 
 V. Tolman, 117 Mass. 110. 
 
 607^ 610= 
 
 Legg V. Horn, 45 Conn. 415.-182', 184* 
 Lehi Irrigation Co. v. Moyle, 4 
 
 Utah, 327. 445' 
 
 Lehigh & W. B. Coal Co. v. Lear 
 
 (Pa.) 8 Cent. Rep. 107 361" 
 Lehigh Valley R. Co. »). Greiner, 
 
 113 Pa. 600, 4 Cent. 
 
 Rep. 898 364' 
 
 V. Lazarus, 28 Pa. 203 664' 
 
 V. McKeen, 90 Pa. 122.... 654' 
 Lehn v. San Francisco, 66 Cal. 76 292" 
 Leigh V. Westervelt, 2 Duer, 618, 
 
 622 35% 110' 
 
 Leisse v. St. Louis & I. M. R. 
 
 Co. 2 Mo. App. 105... 90« 
 Leisy v. Hardin, 135 U. S. 100, 
 
 120, 34 L. ed. 128, 136 464' 
 Lembeck v. ISTye, 47 Ohio St. , 
 
 8 L. R. A. 578.. 
 
 393% 408% 41P 
 
 Lemon v. Newton, 134 Mass. 476 353' 
 V. Newton, 134 Mass. 479. 334^ 
 Lendeman v. Lindsay, 69 Pa. 100 580" 
 Lent V. New York C. & H. R. R. 
 
 Co. 120 N. Y. 467.-.. 364' 
 Leonard v. Baton Rouge, 39 La. 
 
 Ann. 275 387% 391^3 
 
 t). Hart (N.J.) 1 Cent. Rep. 
 
 673 - .238', 263" 
 
 V. Leonard, 2 Allen, 543.. 
 
 167», 5748 
 
 V. Storer, 115 Mass. 86 .-- 
 
 47, 62'% 63' 
 
 ®. White, 7 Mass. 8 419*
 
 TABLE OF CASES. 
 
 lix 
 
 Leonard v. Wilkins, 9 Johns. 233 628^ 
 Letton V. Goodden, L. II. 1 Eq. 
 
 123 480'» 
 
 Levet V. Lapeyrollerie, 39 La. 
 
 Ann. 210 244«, 259' 
 
 Levy V. McCarlee, 31 U. S. 6 Pet. 
 
 102, 8 L. ed. 334 3' 
 
 Xewenthal v. New York, 61 Barb. 
 
 511, 5 Lans. 532 
 
 316, 3265,330' 
 
 Lewis V. Coffee County, 77 Ala. 
 
 190 4033. 407' 
 
 V. Gainesville, 7 Ala. 85... 486* 
 V. Keeling, 1 Jones, L. 299 
 
 ....50P, 540' 
 
 V. Stein, 16 Ala. 214 291* 
 
 Xewiston t. Proctor, 27 111. 418- . 580^ 
 Lewiston Turnp. Co. v. Shasta & 
 
 W. Wagon Road Co. 
 
 41 Cal. 562 ...75*, 475^ 
 
 Lexington & O. R. Co. i\ Apple- 
 gate, 8 Dana, 289, 33 
 
 Am. Dec. 497,513.... 373^ 
 
 V. Applegate, 8 Dana, 294. 82' « 
 
 V. Appleijate. 8 Dana, 299. 77* 
 
 Libby v. Johnson, 37 Minn. 220. 557^ 
 
 Licking Rolling Mill Co.t;. Fischer 
 
 (Ky.) 10 Ky. L. Rep. 
 
 763, 11 S. W. Rep. 305 156'" 
 Liggins V. Inge, 7 Bing. 682.187^ 578*« 
 Lilley v. Fletcher, 81 Ala. 234... 556'^ 
 Xincoln v. Boston, 148 Mass. 578, 
 
 3 L. R. A. 257 149* 
 
 V. Davis, 53 Mich. 375.... 
 
 503^ 514, 517, 518'. 522, 529 
 Lindsay v. Cusimano, 12 Fed. 
 
 Rep. 506.. 1895 
 
 Line v. Taylor, 3 Fost. & F. 731. 620^ 
 Linnehan v. Sampson, 126 Mass. 
 
 506 .52, 608 
 
 Linsey ». Bushnell, 15 Conn. 225 250' 
 Linthicum v. Coan, 64 Md. 439, 
 
 2 Cent. Rep. 623....398« ^ 'o 
 Lipe V. Blackwelder, 25 111. App. 
 
 119 6283 
 
 Lipes V. Hand, 104 Ind. 503, 2 
 
 West. Rep. 314 325^ 
 
 Lippencott v. Allander, 27 Iowa, 
 
 460... 486 
 
 Lippincott v. Harvey (Md.) 19 
 
 Atl. Rep. 1041 162' 
 
 V. Lasher, 44 N.J. Eq. 120, 
 
 12 Cent. Rep. 238.-74*, 247- 
 
 Little V. Lathrop, 5 Me. 356 59P 
 
 V. Lathrop, 5 Me. 357.. 592^, 593^ 
 
 V. McGuire, 38 Iowa, 560. 595^ 
 
 Littlefield v. Littlefield, 28 Me. 180 378' 
 
 V. Maxwell, 31 Me. 134.393', 560' 
 
 Littler v. Lincoln, 106 111. 353 580^ 
 
 Littleton®. Cole, 5 Mod. 181 647* 
 
 Little Pittsl)urg Con. Min. Co. v. 
 Little Chief Con. Min. 
 
 Co. 11 Colo. 223 269' 
 
 Little Rock v. Willis, 27 Ark. 
 
 572... 311" 
 
 Little Rock & Ft. S. R. Co. v. 
 
 Chapman, 39 Ark. 463 435* 
 V. Henson, 39 Ark. 413... 147' 
 V. Holland, 40 Ark. 336... 147' 
 Livermorew. Batchelder,141 Mass. 
 179, 1 New Eng. Rep. 
 
 749 626* 
 
 V. Camden, 29 N. J. L. 415, 
 
 31 N. J. L. 507 3393 
 
 Liverpool Wharf Co. v. Prescott, 
 
 7 Allen, 494 183* 
 
 Livett V. Wilson, 3 Bing. ilo 179 
 
 Livingston v. Adams, 8 Cow. 175 
 
 ...272. 272', 432', 440, 440' 
 1). Heerman, 9 Mart. O. S. 
 
 656 397' 
 
 V. McDonald, 21 Iowa, 160 
 
 295', 297*, 299= 
 
 V. Mayor, 8 Wend. 98 184'' 
 
 Lloyd V. Jones, 6 C. B. 81. 500^ 
 
 V.Lloyd, 60 Vt. 288, 6 New 
 
 Eng. Rep, 250 636* 
 
 V. New York, 5 N. Y. 369, 
 
 55 Am. Dec. 347 
 
 310*, 311*, 331« 
 
 Locke V. First Div. St. Paul & P. 
 
 R. Co. 15 Minn. 350.. 591^ 
 Lockhart«. Geir, 54 Wis. 133-.. 182' 
 Locks & Canals v. Lowell, 7 Gray, 
 223 
 
 292', 321^'322'] '3"2'6"*.327',352 
 v. Nashua & L. R. Co. 104 
 
 Mass. 11 158'', 241' 
 
 Lockwood «. New York & N. H. 
 
 R. Co. 37 Conn. 387.. 397'^ 
 V. Wood, 6 Q. B. 50, 64... 189- 
 
 Lodie ?J. Arnold, 2 Salk. 458 534' 
 
 Loftus V. Union Ferry Co. 84 N. 
 
 Y. 455 138. 138', 488^'' 
 
 Logan i\ Gedney, 38 Cal. 579 592' 
 
 V. Stoirsdale, 123 Ind. 372, 
 
 8^L. R. A. 58 176« 
 
 Logansport v. Dicks, 70 Ind. 65, 
 
 36 Am. Rep. 166 264* 
 
 7). Justice, 74 Ind. 378 331^ 
 
 V. Wright, 25 Ind. 512... 
 
 ..3283, 3292, 330' 
 
 V. Wright, 25 Ind. 513 312 
 
 Logue V. Link, 4 E. D. Smitii, 63 
 
 586«. 617'. 63P 
 
 Lombard v. Cheever; 8 111. 473.. 485* 
 Lonergan v. Lafayette St. R. Co. 
 (Ind.) 4 Harvard Law 
 
 Rev. 260 2513 
 
 Longv. Gill, 80 Ala. 408 239', 263*
 
 Ix 
 
 TABLE OF CASES. 
 
 Longabaugh v. Virginia & T. R. 
 
 Co. 9Nev. 271 648-» 
 
 Lonsdale v. Rigg, 11 Exch. 654.. 543' 
 Loomis V. Terrv, 17 Wend. 496-. 
 
 --.17'. 586«, 616\ 619^ 631" 
 V. Terry, 17 Wend. 500..- 627^ 
 Lord V. Carbon Iron Mfg. Co. 42 
 N. J. Eq.l57, 4 Cent. 
 
 Rep. 8.J3.- 281'^ 295^ 
 
 V. Meadviile Water Co. 135 
 
 Pa. 122, 8 L. R. A. 202 454^ 
 T. Wormwood, 29 Me. 282 
 
 - 5913, 5997 
 
 Lorie v. North Chicago City R. 
 
 Co. 32 Fed. Rep. 27.- 76' 
 Lorillard v. Monroe, 11 N. Y. 392 335" 
 Lorman v. Benson, 8 Mich. 18-.. 
 
 -.. 3773. 
 
 405', 443^ 517', 556', 563' 
 
 1). Benson. 8 Mich. 19 520 
 
 Losee v. Buchanan, 51 N. Y. 476 
 
 14, 271, 271^ 
 
 Lottman v. Barnett, 62 Mo. 162.. 233* 
 Louisiana Mut. Ins. Co. v. Tweed, 
 74 U. S. 7 Wall. 44, 19 
 
 L. ed. 65 653, 659' 
 
 Louisville & F. R. Co. v. Brown, 
 
 17B. Mon. 763 73'' 
 
 Louisville & N. R. Co. v. Hall, 87 
 
 Ala. 708... ..145^3633 
 
 v. McCoy, 81 Ky. 403 362' 
 
 V. Schmidt, 81 Ind. 264... 129'' 
 Louisville &, P. Canal Co. v. Mur- 
 phy, 9 Bush, 533 440^ 
 
 Louisville Bagging Mfg. Co. v. 
 Central P. R. Co. 4 
 Harvard Law Rev. 
 
 260... 2513 
 
 Louisville Citv R. Co. «. Weams, 
 
 80Kv. 420 133', 363' 
 
 Louisville, N. A. & C. R. Co. v. 
 
 Beck, 119 Ind. 124-.. 183' 
 
 V. Ehlert, 87 Ind. 339 653' 
 
 V. Falvey, 104 Ind. 409, 1 
 
 West. Rep. 868 6573 
 
 V. Hart, 119 Ind. 273, 4 L. 
 
 R. A. 549 665'' 
 
 V. Krinning, 87 Ind. 351.. 654' 
 V. Lucas, 119 Ind. 583, 6 L. 
 
 R. A. 193 6603 
 
 0. Nitsche (Ind.) 9 L. R. 
 
 A. 750-643', 6443, 655', 657- •» 
 V. Phillips, 112 Ind. 59, 11 
 
 West. Rep. 119 253' 
 
 V. Richardson, 66 Ind. 43, 
 
 32 Am. Rep. 94 669' 
 
 V. Sandford, 117 Ind. 265. 145* 
 
 ». Smith, 91 Ind. 119 252= 
 
 V. Snider, 117 Ind. 435, 3 
 
 L. R. A. 434 6573 
 
 Louisville, N. A. & C. R. Co. v. 
 
 Wood, 113 Ind. 544- 
 
 556, 12 West. Rep. 303 656» 
 Lovejoy 1;. Lovett, 124 Mass. 270 163* 
 Loveiand v. Gardner, 79 Cal. 317, 
 
 4 L. R. A. 395 123', 597" 
 
 Lovell v. Smith, 3 C. B. N. 8. 120 578^ 
 Lovingston v. St. Clair County, 
 
 64 III. .56 399'° 
 
 Low V. Grand Trunk R. Co. 72 
 
 Me. 313 - 5683 
 
 D. Knowlton. 26 Me. 128.. 
 
 75S 4753 
 
 ®. Streeter (N. H.) 9 L. R. 
 
 A. 271... 161', 1623 
 
 Lowe V. Miller, 3 Gratt. 205 2013 
 
 Lowell V. Boston, 111 Mass. 464, 
 
 469.... 455- 
 
 V. Boston & L. R. Corp. 23 
 
 Pick. 24... 114' 
 
 V. Short, 4 Cush. 275 114' 
 
 V. Spaulding, 4 Cush. 277. 
 
 41", 49*, 62". 68*, 114', 148^ 
 V. Watertown Twp. 58 
 
 Mich. 568 128'' 
 
 Lowery v. Manhattan R. Co. 99 
 
 N. Y. 158 1071, 651 
 
 Lowney ». New Brunswick R. 
 
 Co. 78 Me. 479, 3 New 
 
 Eng. Rep. 268 6483 
 
 Lucas V. Coulter, 104 Ind. 81 61* 
 
 Luce V. Carley, 24 Wend. 451... 427">- 
 Lumparter «. Wallbaum, 45 111. 
 
 444 - 103*^ 
 
 Lund V. New Bedford, 121 Mass. 
 
 286 4583- 
 
 V. New Bedford, 121 Mass. 
 
 289.- 455^ 
 
 9). Tyngsboro, 11 Cush. 563 659' 
 Luther v. Winnisimmet Co. 9 
 
 Cush. 171 ... . 1473, 296«, 3003 
 
 Luttrel's Case, 4 Coke, 87a 255« 
 
 Lux V. Haggin, 69 Cal. 255 
 
 - 3553, 4428, 4572 
 
 Lybe's App. 106 Pa. 626... 283' 
 
 Lybe's App. 106 Pa. 634.. 284 
 
 Lyke v. Van Leuven, 4 Denio, 127 
 
 591''«, 6041^ 
 
 Lyman v. Boston & W. R. Corp. 
 
 4 Cush. 288 654*- 
 
 V. Edgerton, 29 Vt. 305. .. 835'«- 
 Lyme v. Henley, 3 Barn. & Ad. 
 
 77 568-' 
 
 Lynch v. Allen, 4 Dev. & B. L. 
 
 62, 32 Am. Dec. 671.. 3983 
 V. McNally, 7 Daly, 128, 
 
 130, 73N.Y. 347.-586«, 
 
 619' 3. 620^ 630*, 6313, 632^ 
 V. New York, 76 N. Y. 60 
 
 302*, 305\ 317, 326^*
 
 TABLE OF CASES. 
 
 IXl 
 
 Lynch «. Nurdin, 5 Jur. 707 3G7' 
 
 V. Nurdin, 1 Q. B. 38 .... G07-« 
 Xivndsay v. Ce)uuecticut & P. R. 
 
 R. Co. 27 Vt. C4:j.... 147' 
 Lynn v. Nahaut, 113 Mass. 433, 
 
 44,s ... 341> 
 
 V. Turner, Cowp. 86, Loll't. 
 
 536 3748 
 
 Lyon V. McDonald, 78 Tex. 71, 9 
 
 L. R. A. 295 180' 
 
 Lyons v. Brookliue, 119 Mass. 491 125' 
 V. Merrick, 105 Mass. 71.. 
 
 59^', 594", 608, 622^ 
 
 V. Merrick, 105 Mass. 77.. 604- 
 V. Rosenthal, 11 Hun, 46. . 
 
 ...1463, 147- 
 
 M. 
 
 McAdams ■». Sutton, 24 Ohio St. 
 
 333.. 594'^626= 
 
 JVIcAlpin V. Powell, 70 N. Y. 126 
 
 23^ 26-, 29- 
 
 JVIcAadrews v. Collerd, 42 N. J. 
 
 L. 189- --- 362 
 
 McArthur v. Saginaw, 58 Mich. 
 
 357... 310^ 
 
 Macauley v. New York, 67 N. Y. 
 
 603 314- 
 
 McBride v. Lynd, 55 111. 411.... 592'" 
 jNIcCaffrey v. Smith, 41 Hun, 117 74^ 
 McCahill v. Kipp, 2 E. D. Smith, 
 
 418 611'^ 612', 627' 
 
 McCaig V. Erie R. Co. 8 Hun. 599 648^ 
 McCallum v. Gerrnantown Water 
 
 Co. 54 Pa. 40... 287- 
 
 V. Hutchinson, 7 U. C. C. 
 
 P. 508 .483, 493. 51'^^ 
 
 HMcCardle v. Barricklow, 68 Ind. 
 
 356 427^ 
 
 McCarthy v. Guild, 12 Met. 291.. 6243 
 V. Mutual Relief Asso. 81 
 
 Cal. 584. _ 183'^ 
 
 D. Syracuse, 46 N. Y. 194 
 
 109. 313'. 
 
 317, 329^ 330' \ 331'-, 343= 
 V. Young, 6 Hurl. & N. 329 490^ 
 McCarty v. Kilchenman, 47 Pa. 
 
 239 166', 17r 
 
 V. Kitchenman, 47 Pa. 243 164' 
 JVIcCaskill v. Elliott, 5 Strobh. L. 
 
 196 586« 
 
 605", 6069, 617', 620«, 628' 
 McCearly v. Swayze, 65 Miss. 351 
 
 480-', 485', 486^ 
 
 McClain v. Tillson, 82 Me. 281 
 
 - 531', 5352 
 
 McCleneghan v. Omaha & R. V. 
 
 R. Co. 25 Nel). 523... 4344 
 McCloskey v. Powell, 123 Pa. 62. 269' 
 
 McCombs V. Akron. 15 Ohio, 476 342' 
 McCouicoB. Singleton, 2 Treadw. 
 
 244 543' 
 
 McConnell v. Kibbe, 29 111. 483 
 
 256\ 4763 
 
 McCord V. Doniphan B. R. Co. 
 
 21 Mo. App. 92, 3 
 
 VS'est. Rep. 395 81' 
 
 V. High, 24 Iowa. 336 .. 
 
 31 1*. 452'^ 3^ 454-, 455' 
 
 McCormick v. Kelly, 28 Minn. 
 
 137 .. 6343 
 
 McCoull V. Manchester (Va.) 2 L. 
 
 R. A. 091 100 
 
 McCowan v. Wliitesides, 31 Ind. 
 
 235 126'», 475= 
 
 McCready v. South Carolina R. 
 
 Co. 2 Strobh. L. 350.. 664' 
 V. Thomson, 1 Dudley, L. 
 
 131.. 179* 
 
 «. Virginia, 94 U. S. 391, 
 
 24' L. ed. 248 
 
 -...3798 '0, 493, 495= «, 496= 
 McCullough V. Brooklyn, 23 
 
 ^Wend. 458 310* 
 
 V. Wall, 4 Rich. L. 08 .... 389= 
 McCummons v. Chicago & N.W. 
 
 R. Co. 33 Iowa, 187.. 6483 
 McDade v. Chester City, 117 Pa. 
 
 414, 10 Cent. Rep. 779 
 
 -. .3103, 311' 
 
 McDaniel v. Cummings, 83 Cal. 
 
 515, 8 L. R. A. 575. _. 
 
 299, 300*, 436' 
 
 McDonald v. Lindall, 3 Rawle. 
 
 495.... 168'', 169= 
 
 V. Newark, 42 N. J. Eq. 
 
 136, 5 Cent. Rep. 647 
 
 74', 78=, 102' 
 
 «. Sneliing, 14 Allen, 290. 107= 
 V. Snelling, 14 Allen, 297. 608' 
 McDonnell v. Cambridge R. Co. 
 
 151 Mass. 159 81' 
 
 V. Culver, 8 Hun, 155 220" 
 
 McDonough v. Gilman, 3 Allen, 
 
 264 55 
 
 McElhone's App. 118 Pa. 618 ... 101" 
 McFariin v. Essex County, 10 
 
 Cush. 304 513' 
 
 McGarry v. Loomis, 63 N.Y. 104 28* 
 McGenness v. Adriatic Mills, 116 
 
 Mass. 177 291 = 
 
 McGeorgev. Hoffman. 133 Pa. 381 426= 
 McGibbon v. Ba.xter, 51 Hun. 587 642= 
 McGinty v. New York, 5 Duer. 
 
 674 308' 
 
 McGraw, Be, v. Cornell Univer- 
 sity, 45 Hun, 354 88^ 
 
 McGregor v. Boyle, 34 Iowa, 268 
 
 290=, 329=, 330'
 
 Ixii 
 
 TABLE OP CASES. 
 
 McGrew v. Stone, 58 Pa. 43G. ... SGS^ 
 McGuire v. Grant, 25 N. J. L. 356 
 
 ..190', 2003 
 
 V. Grant, 25 N. J. L. 357, 
 
 67 Am. Dec. 49 38' 
 
 V. Rapid City (Dak.) 5 L. 
 
 R. A. 752 3072 
 
 V. Spence, 91 K Y. 303... 115' 
 
 V. Spence, 91 N. Y. 305... 52^ 
 
 McTIvaine v. Lantz, 100 Pa. 586. 609^ 
 
 Mclnlire v. Plaisted, 57 N. H. 606 599' 
 
 V. Roberts, 149 Mass. 450 
 
 108^ 119', 120 
 
 Mclntyre v. Storey, 80 111. 127, 
 
 130 560' 
 
 Mack V. Lombard & St. P. R. Co. 
 (C. P. Pa.) 18 Wash. 
 
 L. Rep. 84_ 655^ 
 
 McKane«. Michigan Cent. R. Co. 
 
 51 Mich. 601 150^ 
 
 McKee v. Delaware & H. Canal 
 
 Co. 52 Hun, 52 435* 
 
 V. McKee, 8 B. Mon. 433.. 602^ 
 McKeigne v. Janesville, 68 Wis. 
 
 50 128^ 
 
 McKeller v. Monitor Twp. 78 
 
 Mich. 485... 657' 
 
 McKenzie v. Elliott (111.) 24 N. E. 
 
 Rep. 965 234^ 237" 
 
 V. McLeod, 10 Bing. 
 
 385 644^ 
 
 McKeon v. See, 4 Robt. 449, 51 
 
 N. Y. 300 10, 153 
 
 t>. See, 4 Robt. 466 77* 
 
 Mackey v. Harmon, 34 Minn. 
 
 168.-. 2053 
 
 McKinnon v. Penson, 8 Exch. 
 
 319, 321, 323.. 338^ 
 
 McKinzie v. Elliott (111.) 24 N. E. 
 
 Rep. 965 183«, 2636 
 
 McKone v. Wood, 5 Car. & P. 1 
 
 6215, 6278 
 
 McLauchlin v. Charlotte & S. C. 
 
 R. Co. 5 Rich. L. 583. 473 
 McLaughlin v. Armlield (Sup.Ct.) 
 
 34 N. Y. S. R. 886... 662> 
 ®. Cecconi, 141 Mass. 252, 
 1 New Eng. Rep. 766 
 
 207^ 212, 215'' 3 
 
 McLear v. Hapgood (Cal.) 24 Pac. 
 
 Rep. 788 4595 
 
 McLellen v. Jenness, 43 Vt. 183. 201^ 
 McMahon v. Second Ave. R. Co. 
 
 75 N. Y. 231 252* 
 
 McManUs v. Carmichael, 3 Iowa, 
 
 1 372«. 376^ 380^ 386^ 
 
 McMillen v. Cronin, 57 How. Pr. 
 
 53 1596 
 
 McNarra v. Chicago & N. W. R. 
 
 Co. 41 Wis. 69 666* 
 
 Macon & W. R.Co. v. McConnell, 
 
 27 Ga. 481 648% 666^' 
 
 McPadden v. New York C. R. 
 
 Co. 44 N. Y. 478 133» 
 
 McPheeters -». Hannibal <fe St. J, 
 
 R. Co. 45 Mo. 22 593' 
 
 McPherson v. Acker, MacArth. 
 
 &M. 150 171' 
 
 McPheters «. Moose River Log 
 
 Driving Co. 78 Me. 
 
 329, 2 New Eng. Rep. 
 
 456--.. 5563 
 
 McRoberts v. Washburne, 10 
 
 Minn. 23. 479*, 483' 
 
 V. Washburne. 10 Minn. 27 480« 
 Maddock, He, 103 N. Y. 630, 5 
 
 Cent. Rep. 791 215* 
 
 Maddox v. Cunningham, 68 Ga. 
 
 431 375 
 
 Madison v. Baker, 103 Ind. 4, 1 
 
 West. Rep. 116 328- 
 
 Madras R. Go. v. Zemindar, L.R. 
 
 1 Ind. Apo. 364, 30 L. 
 
 T. N. S. 770, 32 Week. 
 
 Rep. 865 2733 
 
 Maggie. Cutts, 123 Mass. 535. .. 620- 
 Magnerv. People, 97 111. 332.... 533- 
 
 V. People, 97 111. 333 542 
 
 Magnolia, Tlie, v. Marshall, 39 
 
 Miss. 109 378* 
 
 Mahady v. Bushwick R. Co. 91 
 
 N.Y. 149.. 93« 
 
 Mahogany v. Ward, 16 R. I. — 
 
 .365*. 367, 656' 
 
 Mahoney v. Libbey, 123 Mass. 20 88* 
 Maine v. Cumston, 98 Mass. 317 
 
 204\ 223, 334* 
 
 3[ainon v. Creigh, 37 Conn. 462. 188^ 
 Mairs v. ^Manhattan Real Estate 
 
 Asso. 89 N. Y. 498... 37* 
 Malcomson v. O'Dea, 10 H. L. 
 
 Cas. 593 498^ 
 
 Maleverer v. Spinke, 1 Dyer, 360 647^ 
 Mallocke v. Eastly, 3 Lev. 227... 526' 
 Malloy V. Hibernia Sav. & Loan 
 
 Soc.(Cal.)21Pac. Rep. 
 
 525 27*, 1223, 59(3 
 
 Malone v. Toledo, 28 Ohio St. 643 93^ 
 Mamer v. Lussem, 65 111. 484. .38', 190' 
 
 Maney». State, 6 Lea, 218 535' 
 
 Mangam v. Brooklyn R. Co. 38 
 
 N.Y. 455 38*- 
 
 Manganv. Atterton, L. R. 1 Exch. 
 
 239. 584 
 
 Manbasset, The, 19 Fed. Rep. 
 
 430. 370' 
 
 Manhattan Gaslight Co. v. Barker, 
 
 36How. Pr. 233 79' 
 
 Manhattan Transp. Co. v. Mayor, 
 
 37 Fed. Rep. 160 566»
 
 TABLE OF CASES. 
 
 Ixiii 
 
 Manier ?j.Mvcrs, 4 B. Mon. 520.. 179^ 
 V. Myers, 6 B. Mou. VS2... 42«'' 
 Manitoba, Tlie, 122 U. S. 97, 30 
 
 L. ed. 1095 369' 
 
 Manley v. St. Helen's Canal & R. 
 Co. 2 Hurl. &, N. 840. 
 
 b9\ 5073 
 
 Maun V. Best, 62 Mo. 491 230> 
 
 V. Dunham, 5 Graj', 511 163^ 
 
 V. Weiand, 81* Pa. 243.... 606^ 
 
 V. Weiand, 81* Pa. 255 620' 
 
 V. Wilkinson, 2 Sumn. 276 476^ 
 Manners v. Haverhill, 135 Mass. 
 
 165 347^ 
 
 Mannins: v. Lowell, 130 Mass. 21 351 
 B.^Lowell, 130 Mass, 21, 22 349^ 
 i\ Lowell, 130 Mass. 21, 25 348^ 
 
 V. Smith, 6 Conn. 289 574^ 
 
 V. Wasdale, 5 Ad. & El. 758 188" 
 Marble*. Ross, 124 Mass. 44.617', 631^ 
 Marcly v. Schults, 29 N. Y. 346 
 
 .- .1673, 419'^ 
 
 Marcy v. Merchants Mut. Ins. Co. 
 
 19 La. Ann. 388 659' 
 
 Margraf ». Muir, 57 N. Y. 157... 245' 
 Marianna Flora, The, 24 U. S. 11 
 Wheat. 1, 54, 6 L. ed. 
 
 405, 417 368' 
 
 Marine Ins. Co. v. St. Louis, I. 
 M. & S. R. Co. 41 Fed. 
 
 Rep. 643 lOOS 656^ 
 
 Mark v. Hudson River Bridge Co. 
 103 N. Y. 28, 4 Cent. 
 
 Rep. 203 862' 
 
 Marquette v. Clary, 37 Mich. 296 330' 
 Marquette, H. & O. R. Co. v. 
 
 Spear, 44 Mich. 169... 668* 
 Marsden v. Cambridge, 114 Mass. 
 
 490 ..266', 267 
 
 Marsh v. Chickering, 101 N. Y. 
 
 396... 138' 
 
 V. Colby, 39 Mich. 626.. 517, 525 
 V. Hand, 120 N. Y. 315... 623' 
 V. Jones, 21 Vt. 378. ..619', 621^ 
 Marshall v. Grimes, 41 Miss. 27. 481^ 
 V. Roberts, 18 Minn. 405.. 230' 
 V. Wei wood, 38 N. J. L. 339 
 
 l45^ 
 
 146^ 151, 153, 271^ 272, 586i 
 Marsland v. Murray, 148 Mass. 191 28* 
 Martin v. Benoist, 20 Mo. App. 
 
 262, 2 West. Rep. 541 
 
 270', 273\ 295' 
 
 «?. Bliss, 5 Blackf. 35 375* 
 
 V. Jett, 12 La. 501 295^ 
 
 V. Mason, 78 Me. 452, 3 
 
 New Eng. Rep. 265... 5583 
 V. O'Brien, 34 Miss. 21....3783 « 
 V. Pettit. 117 N. Y. 118, 5 
 
 L. R. A. 794. 41 
 
 Martin v. Riddle, 26 Pa. 415, note 
 
 298*. 299* 
 
 V. Wftddell. 41 U. S. 16 Pet, 
 
 367, 10 L. ed. 997 
 
 ..379'*, 4942*5 
 
 I'.Waddell, 41 U.S. 16 Pet. 
 
 410, lOL. ed. 1013.... 493» 
 V. Western U. R. Co. 23 
 
 Wis. 437 664' 
 
 Mason v. Harper's Ferry Bridge 
 
 Co. 17 W.Ya. 396.... 484' 
 V. Hill, 5 Barn. & Ad. 1... 287' 
 V. Hoyle, 56 Conn. 255. 6 
 New Eng. Rep. 629.. 
 
 5443, 5483 
 
 V. Keeling, 1 Ld. Raym. 606 605'^ 
 V. Keeling, 12 Mod. 332.. 
 
 614, 6292 
 
 V. Mansfield, 4 Cranch, C. 
 
 C. 580.... 538* 
 
 V. Morgan, 24 U. C. Q. B. 
 
 328- 591*, 593', 604' 
 
 V. The William ilurtaugh, 
 
 3 Fed. Rep. 404 369» 
 
 Masonic Temple Asso. v. Harris, 
 79 Me. 250, 4 New Eng. 
 
 Rep. 407 576* 
 
 Massey tJ. Goyner, 4 Car. & P. 161 
 
 192, 199"^ 
 
 Masury v. Southworth, 9 Ohio St. 
 
 340 2216 
 
 Mathers. Chapman, 40 Conn. 382 378"^ 
 Mathews v. Kelsey, 58 Me. 56... 251 
 Matthew v. Offley, 3 Sumn. 115.. 4873 
 Matthews v. Bonsee, 51 N. J. L. 
 
 630 21' 
 
 V. Dixey, 149 Mass. 595, 5 
 
 L. R. A. 102.. 223* 
 
 Mathiason v. Moyer, 90 Mo. 585, 
 
 7 West. Rep. 739 656=" 
 
 Matson t). Maupin, 75 Ala. 312.. 612* 
 Matts V. Hawkins, 5 Taunt. 20.. 
 
 204', 20935, 218 
 
 Maverick, The, 1 Sprague, 24... 485* 
 Maxmilian v. New York, 62 N.Y. 
 
 160 337' 
 
 Max Morris, The, v. Curry. 137 
 U. S. 1. 34 L. ed. 586. 
 
 ...368^ 369 
 
 Maxwell v. Bay City Bridge Co. 
 
 41 Mich. 453, 466.389^ 517" 
 V. Dist. of Columbia, 91 U. 
 
 S. 557, 23 L. ed. 445.. 342' 
 V. McAtee, 9 B. Mon. 20.-245' * 
 V. Palmerton, 21 Wend. 407 627^ 
 May V. Burdett, 9 Q B. 101.587', 
 
 604-, 619' \ 620«, 629', 630» 
 V. Burdett, 9 Q. B. 112.... 588' 
 V. Le Claire, 78 U. S. 11 
 
 Wall. 217, 20L.ed. 50 230»-
 
 Ixiv 
 
 TABLE OF CASES. 
 
 Mayhew v. Burns, 103 Ind. 328, 
 
 1 West. Rep. 577... 38', 648 
 V. Wardley, 14 C. B. N. S. 
 
 548.... 528 
 
 Mayo 1). Newhoff (N. J.) 19 Atl. 
 
 Rep. 837 160', 164^ 
 
 V. Spriiii^field, 136 Mass. 10 120' 
 Mead v. New Haven, 40 Conn. 72 337' 
 Meares v. Wilmington, 9 Ired. L. 
 
 73. 330'' 
 
 Mears v. Dole, 135 Mass. 508.... 271 
 Mebane v. Patrick, 1 Jones, L. 23 427'" 
 Mechanicsburg «. Meredith, 54 III. 
 
 84... 290' 
 
 Medford First Parish v. Pratt, 4 
 
 Pick. 222.. A2V'\ 582' 
 
 Meek v. Breckenridge, 29 Ohio 
 
 St. 642.. ...182', 1848 
 
 Meeker v. Van Rensselaer, 15 
 
 Wend. 397-. 6482 
 
 MehrboflE Bros. Brick Mfg. Co. v. 
 
 Delaware, L. & W. R. 
 
 Co. 51 N. J. L. 56...- 783 
 3Ieibus v. Dodge, 38 Wis. 300, 20 
 
 Amr Rep. 6.617', 6313, 632* 
 Meickley v. Pars(>ns, 66 Iowa, 
 
 63 634* 
 
 Mellen v. Morrill, 126 Mass. 545. 
 
 ----47, 63', 1212 
 
 Mellor V. Pilgrim, 3 111. App. 476, 
 
 7 III. App. 306.- 302' 
 
 Memmertw. McKeen, 112 Pa. 315, 
 
 3 Cent. Rep. 383 -.205^ 241^ 
 Memphis v. Overton, 3 Yerg. 389 377^ 
 Memphis & O. R. Co. v. Hicks, 5 
 
 Sneed, 427 80^ 47P 
 
 Memphis & O. R. Packet Co. v. 
 
 McCool, 83 Ind. 392.. 147' 
 Mendell v. Delano, 7 Met. 176.. 
 
 .1842, 576* 
 
 Meredith v. Reed, 26 Ind. 334... 
 
 585-, 604-'. 6072, 609^ 617^ 
 Merrifield v. Lombard, 13 Allen, 
 
 16 2882, 4563 
 
 V. Worcester, 110 Mass. 216 
 
 _292', 304», 322' 
 
 V. Worcester,110 Mass. 216, 
 
 219. 547' 
 
 V. Worcester, 110 Mass. 216, 
 
 220 350' 
 
 V. Worcester,110 Mass. 216, 
 
 221 347*, 349^ 
 
 V. Worcester, 110 Mass. 218 343^ 
 Merritt v. Brinkerhoff, 17 Johns. 
 
 306 5443 
 
 Merchants Wharf. Boat Asso. v. 
 
 Wood, 64 Miss. 661 ... 136' 
 Mersey Docks v. Gibbs, L. R. 1 
 
 H. L. 93, 35 L. J. N. 
 
 S. Exch. 225.. .-566^ 5633 
 
 Mersey Docks v. Gibbs, L. R. 1 
 
 H. L. 115, 35 L. J. 
 
 N. S. Exch. 225 24* 
 
 v. Gibbs, 11 H. L. Cas. 687 345' 
 v. Penhallow, 30 L. J. N. 
 
 S. Exch. 329 5682 
 
 V. Penhallow, 7 Hurl. &N. 
 
 329 568* 
 
 Mertz V. Detweiler. 8 Watts & S. 
 
 376. ...J 613' 
 
 V. Dorney, 25 Pa. 519 2632 
 
 Merwin v. Wheeler, 41 Conn. 14 
 
 1883. 1893, 378' 
 
 Messinger's App. 109 Pa. 285, 1 
 
 Cent. Rep. 424 
 
 .-409', 426', 429', 441*. 442' 
 Metallic Compression Casting Co. 
 
 V. Fitchburg K. Co. 
 
 109 Mass. 27"7 IO72 
 
 Metropolitan Asylum Dist. v. Hill, 
 
 L. R. 6 App. Cas. 193, 
 
 34 Eng. Rep. (Moak's 
 
 notefi)-678 456' 
 
 Metropolitan Bd. of Works v. 
 
 McCarthy, L. R. 7 H. 
 
 L.243 2662 
 
 Metropolitan R. Co. v. Jackson, 
 
 L. R. 3 App. Cas. 193. 139' 
 Metropolitan Teleph. & Teleg Co. 
 
 1). Colwell Lead Co. 67 
 
 How. Pr. 365 97^ 
 
 Meyer v. Atlantic & P. R. Co. 64 
 
 Mo. 543- 636' 
 
 V. Cook. 85 Ala. 417 586^ 
 
 Meyers v. St. Louis, 8 Mo. App. 
 
 266 -- 3592 
 
 V. St. Louis, 8 Mo. App. 
 
 266,275- 4542 
 
 Michael v. Alestree, 2 Lev. 172.. 612' 
 Middlesex Co. v. McCue, 149 
 
 Mass. 103 9^ 396= 
 
 Middlestadt v. Morrison (Wis.) 44 
 
 N. W. Rep. 1103 107« 
 
 Middleton v. Flat River Booming 
 
 Co. 27 Mich. 533.405', 524 
 Miles V. James, 1 McCord, L. 157, 
 
 159- 488' 
 
 V. Rose, 5 Taunt. 706 374* ' 
 
 Milford V. Holbrook, 9 Allen, 17 
 
 --105', 114' 
 
 Milhau V. Sharp, 15 Barb. 193... 12« 
 Mill Creek Twp. v. Perry (Pa.) 
 
 10 Cent. Rep. 299.129', 131' 
 Millen v. Fandrye. Poph. 161 ... 627^ 
 Miller v'. Brown, 33 Ohio St. 547. 2103 
 V. Church, 2 Thomp. & C. 
 
 259 56 
 
 V. Dale, 72 Iowa, 470 6022 
 
 V. Forman, 37 N. J. L. 
 
 56 470"
 
 TABLE OF CASES. 
 
 Ixv 
 
 Miller v. Garlock, 8 Barb. 153... 
 
 ...234^ 427'o, 571' 
 
 V. Laubacb, 47 Pa. 147.... 2\W 
 V. Laubacb, 47 Pa 154.... 299^ 
 V. Martiu, 16 Mo. 508.6442, 645' 
 V. Mendenball,43 Minn. 95, 
 
 8 L. R. A. 89 
 
 388', 390', 561*5 
 
 V. Miller, 9 Pa. 74... 283', 448' « 
 V. Morristown (N. J.) 20 
 
 Atl. Rep. 61 
 
 3045, 30,53 306-2, 3262 
 
 V. New York City, 109 U. 
 S. 385. 395, 27 L. ed. 
 
 971,975 
 
 370^ 3728, 4641, 4652, 478', 
 Mill River Woolen Mfg. Co. v. 
 Smith, 34 Conn. 463.. 
 
 _.. 389^ 413' 
 
 Mills V. Brooklyn, 32 N. Y. 489 
 ...305^ 313, 313', 316, 
 326*, 329=, 330=* ^fi"", 338' 
 V. Hall, 9 Wend. 315.... 7P, 79' 
 
 «. Learn, 2 Or. 215 480- » 
 
 V. New York & H. R. Co. 
 2 Robt. 326, 41 N. Y. 
 
 619... 632S 
 
 v. St. Clair Co. 49 U. S. 8 
 How. 581, 12 L. ed. 
 
 1206 479* 
 
 Milne's App. 81 Pa. 54 233* 
 
 Milnor i>. New Jersey R. & 
 Transp. Co. 70 U. S. 3 
 Wall. 721, 16 L. ed. 
 
 799 463*, 478* 
 
 Milus V. Dodge, 38 Wis. 300 586" 
 
 Milwaukee v. Gross, 21 Wis. 241. 152- 
 Milwaukee & St. P. R. Co. v. Kel- 
 logg, 94 U. S. 469, 24 
 
 L. ed.256 
 
 106^ 653, 654', 658 
 
 Minard t. Douglas County, 9 Or. 
 
 206... 481' 
 
 Miner v. Gilmour, 12 Moore, P. 
 
 C. 131- 442^ 
 
 V. Gilmour, 12 Moore, P. 
 
 C. 155.... 409', 441- 
 
 Minke v. Hopeman, 87 111. 450 .. 468* 
 Minor v. Wright, 16 La. Ann. 151 295- 
 
 Mintoi;. Delaney, 7 Or. 337 397^ 
 
 Minzies v. Macdonald, 36 Eng. L. 
 
 & Eq. 20 521 
 
 Mississippi & M. R. Co. v. Ward, 
 67 U. S. 2 Black, 485, 
 
 17 L. ed. 311 
 
 79', 4635 6, 477S 478* ^ 
 
 Mississippi & R. R. Boom Co. v. 
 
 Prince, 34 Minn. 79 .. 556' 
 Mississippi & T. R. Co. v. Archi- 
 bald, 67 Miss. 38.-432% 467^ 
 
 Mississippi Boom Co. v. Patter 
 son, 98 U. S. 403, 25 
 
 L. ed. 206 .- 90* 
 
 Missouri Pac. R Co. v. Donald- 
 son, 73 Te.x. 124 647* 
 
 V. Fagan, 72 Tex. 127, 2 L. 
 
 R A. 75 6395 
 
 V. Finlev, 38 Kan. 500... 633^ * 
 
 V. Kincaid, 29 Kan. 654 669* 
 
 V. Platzor, 73 Tex. 117, 3 
 
 L, R. A. 639.... 646', 647* 
 V. Texas eV P. R. Co. 31 
 
 Fed. Rep. .526 654' * 
 
 Mistier v. OGrady, 132 Mass. 139, 
 
 118, 118' 
 
 IHitchell V. Chicago & G. T. R. 
 
 Co. 51 Mich. 236 
 
 137^ 1395, 142' 
 
 V. Parks, 26 Ind. 354 429^ 
 
 V. Rockland, 52 Me. 118 .. 335^ 
 
 V. Seipel, 53 Md. 251 167' 
 
 V. AYalker, 2 Aik.266 582' 
 
 Mitchiil V. Allestry, 3 Keb. 650.. 587' 
 
 Mitten v. Fandrye, Poph. 61 615^ 
 
 Mobile V. Emanuel, 42 U. S. 1 
 
 How. 05. 11 L. ed. 60. 37P 
 V. Emanuel, 42 U. S. 1 
 
 How. 97, 11 L. ed. 60. 379' 
 V. Eslava, 41 U. S 16 Pet. 
 
 234, 10 L. ed. 948 ... 37P 
 V. Hallett, 41 U. S. 16 Pet. 
 
 261, 10 L. ed. 958 37P 
 
 Mobile & M. R. Co. v. .Jure v. Ill 
 U. S. 584, 592, 28 L. 
 
 ed. 527. 530... 572' 
 
 Mobile & O. R. Co. v. Hudson, 
 
 50 Miss. 572 147' 
 
 Moe V. Job (N. Dak.) 45 N. W. 
 
 Rep. 700 645^^ 
 
 Moellerintrr. Evans, 121 Ind. 195, 
 
 "6 L. R. A. 449 
 
 38', 190', 200» 
 
 Moflfatt V. Bateman, L. R. 3 C. 
 
 P. 115 612' 
 
 Mohawk Bridge Co. v. Utica & 
 S. R. Co. 6 Paige, 563, 
 3 N. Y. Ch. L. ed. 
 
 1108... 77" 
 
 Monongahela Bridge Co. v. Kirk, 
 
 46 Pa. 112 3765 « 
 
 Monongahela Nav. Co. v. Coon, 
 
 6 Pa. 383. 546' 
 
 Monroe v. Gates, 48 Me. 463 545* 
 
 Monson & B. Mfg. Co. •». Fuller, 
 
 15 Pick. 554 271 
 
 Monlefiore v. Browne, 7 H. L. 
 
 Cas. 241 242' 
 
 Montello, The, 78 U. S. 11 Wall. 
 411, 20 L. ed. 191 .... 
 370^ 372^ 377' 
 
 E
 
 Ixvi 
 
 TABLE OF CASES. 
 
 492^ 
 
 5933 
 
 616' 
 
 200*^ 
 66()' 
 4125 
 
 3633 
 
 4573 
 103' 
 
 128-* 
 
 2473 
 
 Montello, The, 87 U. S. 20 Wall. 
 
 480, 22 L. ed. 391.... 
 
 403^ 
 
 370, 372«, 374«. 377f 
 Montgomery v. Gilmer, 33 Ala. 
 
 116 3283, 3292, 33P 
 
 V. Handy, 63 Miss. 43 
 
 V. Koester, 35 La. Ann. 
 
 1091.. 
 
 Moody V. McClelland, 89 Ala. 45 
 
 198\ 
 
 Mooney v. Peak, 57 Mich. 259 .. 
 
 Moor®. Veazie, 31 Me. 360 
 
 V. Veazie, 32 Me. 343 377 
 
 Moore v. Central R. Co. 24 N. J. 
 
 L. 268.. 
 
 V. Clear LakeWaterWorks, 
 
 68Cal. 146 
 
 V. C4adsden, 93 N. Y. 12.. 
 
 V. Goedel, 34 N. Y. 527... 256-^ •* 
 
 V. Huntington, 31 AV. Va. 
 
 842 
 
 V. .Jackson, 2 Abb. N. C. 
 
 211. 
 
 V. Loe:an Iron & Steel Co. 
 
 (Pa.) 4 Cent. Rep. 506 25'^ 
 V. Los Angeles, 72 Cal. 287 3328 
 V. Pilot Comrs. 32 How. 
 
 Pr. 184 775 
 
 V. Rawson, 3 Barn & C. 332 
 
 187>, 578« 
 
 V. Sanborne, 2 Mich. 519.. 
 
 376\ 
 
 3773 \ 402', 403\ 405', 524 
 V. Sanborne, 2 Mich. 523.. 5503 
 
 V. White, 45 Mo. 206 595'' 
 
 Mootry v. Danbury, 45 Conn. 550 292^ 
 Moran v. McClearns, 63 Barb. 185 
 
 .292^ 326* 
 
 V. McClearns, 63 Barb. 195 3283 
 Moreland v. Boston & P. R. Corp. 
 
 141 Mass. 31, 1 New 
 
 Eng. Rep. 909 363' 
 
 Morey v. Brown, 42 N. H. 373 .. 626-^ 
 V. Fitzgerald, 56 Yt. 487 .. 124* 
 Morgan v. Graham, 1 Woods, 124 
 
 ....75*, 
 
 v. Hallow ell, 57 Me. 375-. 
 V. King, 35 N. Y. 454 
 
 ..389^ 407', 463', 479^ 
 
 V. King, 35 N. Y. 459... 376'^ ^ « 
 V. King, 35 N. Y. 454, 30 
 
 Barb. 1 
 
 V. King, 35 N. Y. 454, 30 
 
 Barb. 9, 18 Barb. 277. 
 V. King, 18 Barb. 282, 35 
 
 N. Y. 459 403' 
 
 V. King, 18 Barb. 277 403« 
 
 V. Livingston, 6 Mart. O. 
 
 S. 216 397' 
 
 4753 
 233 
 
 412' 
 
 3773 
 
 Morgan v. Mason, 20 Ohio, 401.. 162* 
 
 V. Moore. 3 Gray, 319 184* 
 
 V. Nagodish, 40 La. Ann. 
 
 246 541" 
 
 V. Pennsylvania R. Co. 19 
 
 Biatchf. 239 24' 
 
 V. Scott, 26 Pa. 51 396^ 
 
 Morley v. Pragnell, Cro. Car. 510 270- 
 Morrill v. Hurley, 120 Mass. 99.. 
 
 296^ 3023, 3034^ 3493. 
 
 V. St. Anthony Falls VVater- 
 Power Co. 26 Minn. 
 
 222 .- 359- 
 
 Morris v. B rower, Anth. N. P. 
 
 368 41^ 622- 
 
 ■a. Commander, 3 Ired. L. 
 
 510 262* 
 
 V. Fraker, 5 Colo. 425 593' 
 
 V. French. 106 Mass. 326.. 1633 
 V. New York C. & H. R. 
 R. Co. 106 N. Y. 678, 
 
 9 Cent. Rep. 288 139« 
 
 «. Nugent, 7 Car. & P. 568 628^ 
 V. Venderen, 1 U. S. 1 Dall. 
 
 67, 1 L. ed. 40 443*- 
 
 Morris & E. R. Co. v. Newark, 
 
 ION. J. Eq. 352 92'- 
 
 «. Prudden,20 N. J. Eq.530 76^ 
 Morris Canal & Bkg. Co. v. Jersey 
 
 City, 26 N. J. Eq. 294 412^ 
 Morrissey v. Eastern R. Co. 126 
 
 Mass. 377 233- 
 
 Morrison v. Bucksport & B. R. 
 
 Co. 67 Me. 353... 295', 300'^ 
 V. Coleman, 87 Ala. 655, 5 
 
 L. R. A. 384 
 
 ...375'*, 405' 2 4, 408^ 476^ 
 v. King, 62 111. 30.162*, 166'. 168*^ 
 V. Lawrence, 98 Mass. 219 
 
 .337', 352' 
 
 V. Marquardt,24 Iowa, 35. 180- 
 Morse v. Benson (Mass.) 24 N. E. 
 
 Rep. 675 244^ 
 
 V. Copeland, 2 Gray, 302.. 
 
 187*, 571' 
 
 «. Nixon, 6 Jones, L. 293. 628* 
 
 V. Reed, 28 Me. 481 601' 
 
 V. Sweenie, 15 111. App. 486 127* 
 Moses V. Pittsburgh, Ft. W. & C. 
 
 R. Co.'21 111. 516 73'' 
 
 Moses Taylor, The, 71 U. S. 4 
 Wall. 411, 18 L. ed. 
 
 397 -. 371' 
 
 Mosey v. Troy, 61 Barb. 580 .... 843' 
 Moshier v. Utica & S. R. Co. 8 
 
 Barb. 437 35' 
 
 Mosier®. Caldwell, 7 Nev. 363.. 280' 
 Mossman v. Forrest, 27 Ind. 233. 375' 
 
 Motes V. Bates, 80 Ala. 382 181* 
 
 Mott V. Mott, 68 N. Y. 246 389*
 
 TABLE OF CASES. 
 
 Ixvii 
 
 Mould V. Williams, 5 C. B. 409.. 250' 
 Moulton V. Libbey, 37 Me. 4:12.. 
 
 4U.-y^510S 540' 
 
 V. Scarborough, 71 Me. 
 
 269 dW^^ 
 
 Mounsey v Isinay, 1 Hurl. & C. 
 
 7:29.. 189" 
 
 Mount Adams & E. P. I. R. Co. 
 
 t'.Winslow, 3 Ohio Ct. 
 
 Ct. Rep. 425 .-.. 25P 
 
 Mt. Vernon v. Dusouchett, 2 Ind. 
 
 586 126^ 
 
 Mouse's Case, 12 Coke, 63 6', 647^ 
 
 Mowatt V. McFee, 5 Sup. Ct. 
 
 (Can.) 66 496^ 
 
 Mower v. Leicester, 9 Mass. 247, 
 
 250 338^ 339 
 
 Mowry v. Sheldon, 2 R. I. 369... 571' 
 Moynahan v. Wheeler, 117 N. Y. 
 
 285.. 6053 
 
 Moynihan v. Wliidden, 143 Mass. 
 
 287, 3 New Eng. Rep. 
 
 362 lOP 
 
 Mud Creek. I. & A. Mfg. Co. v. 
 
 Vivian, 74 Tex. 170.. 
 
 425', 443» 
 
 Mueller v. Fruen, 36 Minn. 273,. 426^ 
 Mulcairns v. Janesville, 67 Wis. 
 
 24 ...337«, 342' 
 
 MuUaney v. Spence, 15 Abb. Pr. 
 
 N. S. 319 29* 
 
 Mullen V. Rainear, 45 N. J. L. 520 62* 
 V. St. John, 57 N. Y. 567 
 
 ....493, 51^ 146', 147'^ 149' 
 V. Strieker, 19 Ohio St. 135 180^ 
 Muller V. McKesson, 73 N. Y. 195 
 
 587', 616', 
 
 618', 619', 62r, 63U^ 631' 
 Mullis V. Gavins, 5 Blackf. 77... 480' 
 Mulroy v. Norton, 100 N. Y. 424, 
 
 1 Cent. Rep. 748, 752. 
 
 359«, 
 
 360', 393^ 3993, 400* ^ « \ 401^ 
 Mumford v. Wardwell, 73 U. S. 6 
 
 Wall. 423-436, 18 L.ed. 
 
 756-760 493' 
 
 V. Whitney, 15 Wend. 380 185^ 
 Munger v. Marshalltown, 59 Iowa, 
 
 763 128' 
 
 Municipality No. 2 v. Orleans 
 
 Cotton Press, 18 La. 
 
 122 396' 
 
 V. Orleans Cotton Press, 18 
 
 La. 213.. 3932 
 
 Munn V. Illinois, 94 U. S. 113, 24 
 
 L. ed. 77 ... 97' 
 
 Munro v. Thomas, 5 Cal. 470 485 
 
 Munroe v. Ivie, 2 Utah, 535 446' 
 
 Munson v. Baldwin, 7 Conn. 
 
 168 498^ 
 
 Munson o.Hungerford, 6 Barb. 265 
 
 377^ 405» 
 
 V. Hungerford, 6 Barb. 268 550» 
 
 V. Reid, 46 Hun. 399 
 
 237». 258\ 575* 
 
 Murchie v. Gates, 78 Me. 300, 2 
 
 New Eng. Rep. 435. . 235'o 
 Murdock v. Chapman, 9 Gray, 156 163' 
 V. Prospect Park & C. I. R. 
 
 Co. 73 N. Y. 579 90' 
 
 n. Stickney, 8 Cush. 113, 
 
 115 374» 
 
 Murphey v. Wilmington, 5 Del. 
 
 Ch. 281 307» 
 
 Murphy v. Chicago. 29 111. 275.. 30.5^ 
 V. Cliicago, 29 111. 279 .... 305* 
 V. Chicaso & N. W. R. Co. 
 
 45 Wis. 222 666* 
 
 V. Indianapolis, 83 Ind. 76 128' 
 
 V. Kelley, 68 Me. 521 295» 
 
 V. Lowell, 124 Mass. 564.. 
 
 31 P, 343^ 347*, 349* 
 
 V. McGraw, 74 Mich. 318.. 63ft 
 V. Preston, 5 Mackey, 514, 
 
 9 Cent. Rep. 146. 59P, 605» 
 Murray v. Haverty, 70 111. 318... 201* 
 ij. McLean, 57 111. 378 .... i9» 
 V. McShane, 52 Md. 217, 
 
 36 Am. Rep. 367 
 
 ...27^ 121', 125* 
 
 V. Young, 12 Bush, 337.. 
 
 586^ 620» 
 
 Murry v. Sermon, 1 Hawks. 56.399^ '» 
 Musgrave v. Sherwood, 60 How. 
 
 Pr. 339... 210* 
 
 V. Smith, 37 L. T. N. S. 367 270* 
 Musser v. Hershey. 42 Iowa. 356 79' 
 Mussey v. Proprietors Union 
 
 Wharf, 41 Me. 34.... 575' 
 Muster v. Chicago, M. & St. P. R. 
 
 Co. 61 Wis. 325.. 133^ 146^ 
 Myers v. Malcolm, 6 Hill, 292... 79^ 
 
 N. 
 
 Nadau v. White River Lumber 
 
 Co. 76 Wis. 120 5842- 
 
 Nafe V. Leiter, 103 Ind. 138, 1 
 
 West. Rep. 165... 590', 602* 
 Nagel V. Missouri P. R. Co. 75 
 
 Mo. 653 29" 
 
 Nagle V. Ingersoll, 7 Pa. 185.... 3805- 
 Naile V. Paiigi (Tex.) 1 L. R. A. 
 
 f. 209', 210'. 223" 
 
 Napier v. Buhvinkle, 5 Rich. L. 
 
 311.. 180^ 201^ 237" 
 
 V. Bulwinkle, 5 Rich. L. 
 
 311, 324 233=- 
 
 Nash V. New England Mut. L. 
 
 Ins. Co. 127 Mass. 91. 242*
 
 Ixviii 
 
 TABLE OF CASES, 
 
 Nat. Docks R. Co. v. Central R. 
 
 Co. 32 N. J. Eq 755- 90^ 
 National Exch. Bank v. Cutining- 
 
 hara, 46 Ohio St. 575. 165' 
 National Manure Co. v. Donald, 
 
 4 Hurl. & N. 8 575' 
 
 Nave V. Flack, 90 Ind. 205, 207 
 
 19^ 205 
 
 «. Flack, 90 Ind. 212 128« 
 
 Neaderhouser v. iState, 28 Ind. 257 
 
 ...375-, 405' 
 
 V. State, 28 Ind. 270 550^ 
 
 Nealley v. Bradford, 145 Mass. 
 
 561, 564. 5 New Eng. 
 
 Rep. 515. -..3475, 349*. 383' 
 Nebraska City v. Campbell, 67 U. 
 
 S. 2 Black, 590, 17 L. 
 
 ed. 271.340'. 342', 343^ 344" 
 
 V. Lampkin, 6 Neb. 27 305- 
 
 Needham «. Louisville & N. R. 
 
 Co. 85 Ky. 423. 362» 
 
 Neflf V. Paddock, 27 Wis. 546 ... 27- 
 Neffer v. Wellesley. 148 Mass. 
 
 487, 2 L. R. A. 500... 346 
 Neill V. Duke of Devonshire, L. 
 
 R. 8 App. Cas. 135 . . 496* 
 Neitzey v. Baltimore & P. R. Co. 
 
 5 Mackey, 34, 3 Cent. 
 Rep. 773.. 822 
 
 Nellis V. Munson, 108 N. Y. 453, 
 
 11 Cent. Rep. 449 .... 158^ 
 
 Nelson v. Leland, 63 U. S 22 How. 
 
 48, 16 L. ed. 269 408' 
 
 V. Liverpool Brewery Co. 
 L. R. 2 C. P. Div. 311 
 ...45, 46, 48', 49' \ 51-, 52- 
 V. Phoenix Chemical Works, 
 
 7 Ben. 37 566-' 
 
 Nevins v. Peoria, 41 111. 502, 89 
 
 Am. Dec. 392 
 
 290', 2915, 
 
 304% 305". 3063, 3301^ 4.542 
 V. Peoria, 41 111. 502, 510.. 435^ 
 V. Peoria, 41 111.504 292« 
 
 Newark v. Delaware, L. & W. R. 
 Co. 42 N. J. Eq. 196, 
 5 Cent. Rep. 629 77' 
 
 Newark Aqueduct Board v. Pas- 
 saic, 45 N. J. Eq. 393. 
 385', 454', 468-^3^ 477^ 
 
 Newark PI. Road & Ferry Co. v. 
 
 Elmer, 9 N. J. Eq. 755 468- 
 
 New Bedford v. Taunton, 9 Allen, 
 
 207 -.335*, 346' 
 
 Newell V. Minneapolis, L. & M. 
 R. Co. 35 Minn. 112, 
 59 Am.Rep. 303-.-95', 25P 
 
 Newhall v. Ireson, 8 Cush. 595, 
 
 54 Am. Dec. 790 
 
 41P, 443^ 451* 
 
 New Haven Steamboat Co. v. 
 
 Vanderbilt, 16 Conn. 
 
 420 .- 637' 
 
 New Ipswich W. L. Factory v. 
 
 Batchelder,3N. H. 190 
 
 167-, 175', 419* 
 
 New Jersey Steam Nav. Co. v. 
 
 Merchants Bank, 47 U. 
 
 S. 6 How. 844, 12 L. 
 
 ed. 465 371' 
 
 New Jersey Zinc & Iron Co. v. 
 
 Morris Canal & Bkg. 
 
 Co. 44 N. J. Eq. 398. 
 
 1 L. R. A. 133, 13 
 
 Cent. Rep. 342 385' 
 
 Newkirk v. Sabler, 9 Barb. 652.. 124* 
 Newman v. Nellis, 97 N. Y. 285.. 
 New Orleans v. Stafford, 27 La. 
 
 Ann. 417, 21 Am. Rep. 
 
 563 
 
 V. United States, 35 U. S. 
 
 10 Pet. 662, 9 L. ed. 563 
 
 ....397' 
 
 V. United States, 35 U. S. 
 
 10 Pet. 662, 717, 9 L. 
 
 ed. 573, 594 393- 
 
 New Orleans, J. & G. N. R. Co. 
 
 «. Albritton, 38 Miss. 
 
 242 
 
 V. Enochs, 42 Miss. 603 ... 
 New Orleans, M. & C. R. Co. v. 
 
 Hanning, 82 U. S. 15 
 
 Wall.649, 21L. ed. 220 568* 
 V. Banning, 82 U. S. 15 
 
 Wall. 658, 21 L. ed. 223 39'^ 
 New Orleans. M. & T. R. Co. v. 
 
 Ellertnan, 105 U. S. 
 
 166, 26 L. ed. 1015 ... 
 
 388', 390' 
 
 V. Mississippi, 113 U. S. 12, 
 
 28 L. ed. 619_ 466' 
 
 Newport v. Taylor, 16 B. Mon. 
 
 699.1 
 
 Newport & C. Bridge Co. ?', 
 
 United States, 105 U. 
 
 S. 470, 475, 26 L. ed. 
 
 1143, 1145 372*, 466^ •* 
 
 New River Co. v. Johnson, 3 El. 
 
 & El. 435 
 
 Newton v. Cubitt, 12 C. B. N. S. 
 
 32.. 480^3, 
 
 V. Gordon, 72 Mich. 642... 
 New World, The, v. King, 57 U. 
 
 S. 16 How. 469, 14 L. 
 
 ed. 1019 363' 
 
 New York v. Bailey, 2 Denio, 433 
 
 ..256', 431, 431*, 439 
 
 V. Bailey, 2 Denio, 440 35* 
 
 V. Broadway & S. A. R. 
 
 Co. 97 N. Y. 275 88« 
 
 162* 
 
 152' 
 
 401 
 
 1555 
 
 147' 
 
 560' 
 
 265* 
 
 482* 
 624'
 
 TABLE OF CASES. 
 
 Ixix 
 
 New York v. Furze, 3 Hill, 612. 
 
 3263, 3,)8», 32y\ 330'', 343- 
 
 V. Hart. 95 N. Y. 451 88' 
 
 V. Lord, 17 Wend. 285.... 321-' 
 V. Lord, 17 Wend. 290, 18 
 
 Wend. 125 - 6' 
 
 V. New York & S. L Ferry 
 Co. 8 Jones & S. 232, 
 
 245 480' 
 
 V. New York & S. L Ferry 
 Co. 8 Jones & S. 232, 
 
 246 480^ 
 
 V. Sheffield, 71 Wall. 189, 
 
 IS L. ed. 416 342' 
 
 V. Starin, 106 N. Y. 1, 8 
 
 Cent. Rep. 54... 885' 
 
 New York & E. K. Co. v. Skinner, 
 
 19 Pa. 298 59P 
 
 New York & II. R. Co. v. Kip, 46 
 
 N. Y. 546. 89» 
 
 New York Cable R. Co. v. New 
 York, 104 N. Y. 1, 6 
 
 Cent. Rep. 56 95^ 
 
 New York C. & H. R. R. Co., Be, 
 
 15 Hun, 63. 90' 
 
 New York Elev. R. Co., Be, 36 
 
 Hun, 427. 435^ 
 
 New York, H. & N. R. Co. v. 
 Boston, H. & E. R. Co. 
 
 36 Conn. 196.. 89' 
 
 New York, L. E. & W. R. Co. v. 
 Haring,47N. J. L. 137, 
 
 54 Am. Rep. 123 491' 
 
 New York Nat. Bank v. New 
 York Elevated R. Co. 
 
 24 Fed. Rep. 114 85 
 
 New York Rubber Co. v. Roth- 
 ery (Sup. Ct.) 32 N. Y. 
 
 S. R. 905 3603 
 
 Niblett V. Nashville, 12 Heisk. 6S4 29' 
 Nicholas v. Chamberlain, Cro. 
 
 Jac. 121.... 175', 4185, 574-' 
 Nichollsu. Wentworth, 100 N.Y. 
 
 455, 1 Cent. Rep. 737. 234'» 
 Nichols V. Boston, 98 Mass. 39, 43 
 
 292«, 550« 
 
 V. Chicago, St. P., M. & 
 
 O. R Co. 36 Minn. 452 669^ 
 
 ». Luce, 24 Pick. 103 167' 
 
 V. Luce, 24 Pick. 104 168« 
 
 V. Marsland, L. R, 10 Exch. 
 
 255.. 273 
 
 V. Washington, O. & W. 
 R. Co. 83 Va. 99, 5 
 
 Am. St. Rep. 257 202 
 
 Nicholson v. Erie R. Co. 41 N.Y. 
 
 525 ..-.24', 253, 263 
 
 Nickerson v. Brackelt, 10 Mass. 
 
 212 540' 
 
 D.Tirrell, 127 Mass. 236.193, 56S3 
 
 Niebaus v. Shepherd, 26 Ohio St. 
 
 40 399'» 
 
 V. Shepherd. 26 Ohio Si. 45 397' 
 
 Niles 5. Martin, 4 Mich. 557 339* 
 
 V. Patch, 13 Gray, 254 378' ' 
 
 V. Patch, 13 Gray, 257 393' 
 
 Nimsw. Troy, 59 N. Y. 500 
 
 124', 3263, 330^ 
 
 Niskern v. Chicago, M. &, St. P. 
 
 R. Co. 22 Fed. Rep. 
 
 811 666* 
 
 Nitro-Glycerine Ca.se, 82 U. S. 15 
 
 Wall. 524, 21 L.ed. 206 
 
 133', 137« 
 
 Nitro-Phosphate & O. C. M. (Jo. 
 
 V. London & St. K. 
 
 Docks Co. L. R. 9 Ch. 
 
 Div. 503 2708, QQQi 
 
 Nitzell V. Pascball, 3 Rawle, 76, 
 
 82.. 571', 581* 
 
 Ni.xon V. Biloxi (Miss.) 5 So. Rep. 
 
 6-21 76* 
 
 V. Waller, 41 N. J. Eq. 103, 
 
 4 Cent. Rep. 875 3933 
 
 Noble V. Richmond, 31 Gratt. 271 100' 
 Noe V. Chicago, B. & Q. R. Co. 
 
 76 Iowa. 300.4:535, 434', 435' 
 Nolan V. New York. N. H. & H. 
 
 R. Co. 53 c;onn. 416, 1 
 
 NewEriff. Rep. 826.30', 31' 
 «. Shickle, 3'^M.). App. 300 1366 
 Noonan v. Albany, 79 N. Y. 470 
 
 292 ■', 297S 304* 
 V. Albany, 79 N. Y. 475, 
 
 476 
 
 292*, 311*, 320', 325», 326* 
 Norcross v. Thomas, 51 Me. 503. 153' 
 Norfleet v. Cromwell, 70 N. C. 634 229' 
 Norfolk V. Cooke, 27 Gratt. 430, 
 
 435.. -- 359' 
 
 Norfolk & W. R. Co. v. Jackson, 
 
 (Va.) 8 S. E. Rep. 370 145' 
 Norling v. Aliee (N". Y.) 31 N. Y. 
 
 S. R. 412 123' 
 
 NorrisB. Haverhill, 65 N. H. 89. 131^ 
 V. Kohler, 41 N. Y. 42.... 612' * 
 Norristown v. Moyer, 67 Pa. 
 
 355.... 331» 
 
 North Birmingham Street R. Co. 
 
 V. Calderwood (Ala.) 7 
 
 So. Rep. 360. 300, 364=« 
 
 North Eastern R. Co. v. Wan less, 
 
 L. R. 7 H. L. 12 1503 
 
 Northern Transp. Co. v. Chicago, 
 
 99 U. S. 635, 25 L. etl. 
 
 336 38', 190', 3075 
 
 308*, 389^, 390', 464', 478' 
 North Shore R. Co. v. Pion (Eng. 
 
 P. C.) 12 Montreal L. 
 
 N. 395 359'
 
 Ixx 
 
 TABLE OF CASES. 
 
 North Star, The, 106 U. S. 17,27 
 
 L. ed. yi. 369' 
 
 North Vernon v. Voegler, 89 Ind. 
 
 79 312' 
 
 V. Voegler, 103 Ind. 314, 1 
 
 West. Rep. 566. 
 
 73^ 247', 311, 332' 
 
 North Yarmouth v. Skillings, 45 
 
 Me. 133 53r 
 
 V. Skillings, 45 Me. 143... 532« 
 Norton v. Scholefield, 9 Mees. & 
 
 W. 665 288' 
 
 V. Wiswall, 26 Barb. 618.412, 62' 
 Norway Plains Co. v. Bradley, 52 
 
 N. H. 86 389« 
 
 Norwich v. Breed, 30 Conn. 547. 118 
 
 Nott V. Fursh, 2 Or. 237. 485 
 
 Nourse v. Nourse, 116 Mass. 101. 183-* 
 
 Nowlin V. Whipple, 79 Ind. 481. 182«^ 
 
 V. Whipple, 120 Ind. 596, 
 
 6 L. R. A. 159 182' ' 
 
 Noyes v. Boscawen, 64 N. H. 361, 
 
 5NewEag. Rep. 70.. 127* 
 
 V. Colby, 30 N. H. 143 595', 633^ 
 
 1). Shepherd, 30 Me. 174... 70' 
 
 V. Stillman, 24 Conn. 15 . . . 56' 
 
 Nugent V. Boston, C. & M. R. Co. 
 
 80 Me. 62, 77, 5 New 
 
 Eng. Rep. 865 49' 
 
 Nute v. Boston Co op. Bldg. Co. 
 
 149 Mass. 465 244* 
 
 Nutter V. Gallagher (Or.) 24 Pac. 
 
 Rep. 250 
 
 402', 403^ 405', 407^ 
 
 Nye V. Hoyle, 120 N. Y. 195.... 420* 
 
 O. 
 
 Cakes v. Spaulding, 40 Vt. 347.. 
 
 ...594«, 617', 619^ 
 
 Oakham v. Holbrook, 11 Cush. 
 
 299- 41*, 1483 
 
 Oakland R. Co. v. Fielding, 48 
 
 Pa. 321-. 488* 
 
 V. Oakland, B. & F. V. R. 
 
 Co. 45 Cal. 365. 487^ 
 
 O'Brien v. Capwell, 59 Barb. 497 61* 
 V. Norwich & W. R. Co. 17 
 
 Conn. 372 477^ 
 
 V. Norwich & W. R. Co, 17 
 
 Conn. 375... 77* 
 
 V. St. Paul, 18 Minn. 176. 
 
 29P, 292'* 
 
 V. St. Paul, 25 Minn. 331. 
 
 297' *, 3045 
 
 «. St. Paul, 25 Minn. 332 . 326* 
 O'Callaghan v. Bode (Cal.) 24 Pac. 
 
 Rep. 269 2234 
 
 Cecum Co. V. Sprague Mfg. Co. 
 
 34 Conn. 539 648" 
 
 Ocean Grove Camp Meeting Asso. 
 
 D. Asbury ParkComrs. 
 
 40 N. J. Eq. 447, 2 
 
 Cent. Rep. 180. ...282', 454» 
 O'Connor v. Fond du Lac, A. & 
 
 P. R. Co. 52 Wis. 526, 
 
 38 Am. Rep. 753 148^ 
 
 V. Pittsburgh, 18 Pa. 1.87.. 305^ 
 Odell V. Schroeder, 58 111. 353... 3373 
 O'Dounell v. Kelsey, 4 Sandf. 202, 
 
 affirmed 10 N. Y. 412. 360' 
 Ogburn v. Connor, 46 Cal. 346.. 299 
 
 Ogden V. Grove. 38 Pa. 491 174=' 
 
 V. Jennings, 62 N. Y. 526 
 
 ....169*, 1713 
 
 «. Jennings, 62 N. Y. 531. 
 
 219', 575' 
 
 Ogg ■». Lansing, 35 Iowa, 495, 14 
 
 Am. Rep. 499..-.335^ 337' 
 Ohio & M. R. Co. V. Hecht, 115 
 
 Ind. 443.... 6573 
 
 V. Shanefelt, 47 111. 497... 665* 
 Oil Creek & A. R. Co. v. Keigh- 
 
 ron, 74 Pa. 316 652' 
 
 Oleson V. Brown, 41 Wis. 415 
 
 635'2, 637' 
 
 O'Linda v. Lothrop, 21 Pick. 
 
 292 125- 
 
 Olive V. Stale^Se Ala.' 88^4" lVr' 
 
 A. 33 257=, 
 
 375^ 403^ 404' ^ 407', 460" 
 Oliver v. Dickinson, 100 Mass. 
 
 114.. 167' 
 
 V. Northeastern R. Co. 9 
 
 Moak, Eng. Rep. 350. 252» 
 V. Piatt, 44 U. S. 3 How. 
 
 333, 11 L. ed. 622 .... 230' 
 ^|. Worcester, 102 Mass. 489 
 
 121^ 34P, 345'' 3 
 
 V. Worcester, 102 ]\lass. 489, 
 
 500-. 3433, 348' 
 
 Olmstead v. Abbott, 61 Vt. 281.. 4213 
 Olmsted v. Loomis, 9 N. Y. 423. 42P 
 
 V. Rich, 53 Hun, 638 587 
 
 Olney v. Fenner, 2 R. I, 211, 57 
 
 Am. Dec. 711 3553, 4273 
 
 Olson V. Merrill, 42 Wis. 203.... 
 
 389-, 405', 412' 
 
 V. Merrill, 42 Wis. 213 556' 
 
 V. St. Paul, M. & M. R. Co. 
 
 38 Minn. 419.290' 297*, 304^ 
 Omaha & R. V. R. Co. v. Brown, 
 
 16 Neb. 161 435* 
 
 V. Standen, 22 Neb. 343 .. 478^ 
 Omaha G. Smelt. & Refin. Co. v. 
 
 Tabor, 13 Colo. 41, 5 
 
 L. R. A. 236 2013 
 
 Omaha Horse R. Co. v. Cable 
 
 Tramway Co. 30 Fed. 
 
 Rep. 324 88*
 
 TABLE OF CASES. 
 
 1> 
 
 Omaha Hotel Asso. v. Walter, 23 
 
 Neb. 280 108=^ 
 
 O'Malley v. St. Paul, M. & M. R. 
 
 Co. (Minn.) 45 N. W. 
 
 Kep.440 29' ' 
 
 Omslaer ■». Philadelphia Co. 31 
 
 Fed. Rep. 354 659' 
 
 Onderdunk v. Smith, 27 Fed. 
 
 • Rep. 874. 568^ 
 
 O'Neil V. Blodtrett. m Vr. 213..- 2o7' 
 V. Harkins, 8 Bush, 650... 38' 
 O'Neill V. Annett, 27 N. J. L. 
 
 290 564 
 
 V. New York, O. & W. R. 
 
 Co. 115 N. Y. 579, 5 
 
 L. R. A. 591 647-', GoS'^ 
 
 Onstolt V. Murray, 22 Iowa, 457. 23b'' 
 Orinan v. Day, 5 Fla. 385, 392... 
 
 213^ 216^ 
 
 Orme v. Richmond, 79 Va. 86. .. 100' 
 Ormerod v. Todmorden J. S. Mill 
 
 Co. L. R. 11 Q. B. Div. 
 
 155 456^ 
 
 O'Rourke v. Hart, 7 Bosw. 511, 9 
 
 Bosw. 301 -- 39'' 
 
 v. Peck, 29 Fed. Rep. 223. 566- 
 V. Peck, 40 Fed. Rep. 907 
 
 19-, 567-2, 5634 
 
 Ortmayer «. Johnson, 45 111. 469. 256^ 
 Osage City v. Larkins, 40 Kan. 
 
 206, 2 L. R. A. 56..-. 29' 
 Osborn v. Union Ferry Co. 53 
 
 Barb. 629 .75\ 4753 
 
 V. Wise, 7 Car. & P. 761.. 158' 
 Osborne v. Brooklyn City R. Co. 
 
 5Blatchf. 366 76' 
 
 V. Detroit, 32 Fed. Rep. 36 
 
 130^ 342' 
 
 Osburn v. Longsduff, 70 Mich. 
 
 127, 14 West. Rep. 212 81' - 
 Osgood V. Green, 33 N. H. 318.. eOl'* 
 Oshkosh V. Milwaukee & L. W. 
 
 R. Co. 74 Wis. 534... 88^ 
 Ott V. Kreiter, 110 Pa. 370, 1 Cent. 
 
 Rep. 387....161«, 418«, 419^ 
 Ottawa Gas-Light C. Co. v. 
 
 Graham, 28 111.74... 
 
 7^ 8^ 155'. 278 
 
 Ottumwa V. Parks, 43 Iowa, 119 
 
 108\ 113' 
 
 Overington v. Dunn, 1 Miles, 39. 612' 
 (Jverton v. Sawyer, 1 Jones, L. 
 
 308. 2953 
 
 Owen V. Bartholomew, 9 Pick. 
 
 520 1633 
 
 V. Chicago, 10 111. App. 465 342' 
 D. Dunchvide, Pr. 2 Jac. I. 
 
 B. R 530' 
 
 «. Field, 102 Mass. 90 5803-* 
 
 V. Field, 102 Mass. 114 571' 
 
 Owings V. Jones, 9 Md. 108.. 45', 51 
 Oyshterbank v. Gardner, 17 Jones 
 
 &S. 263 135' 
 
 Packard v. Rvder, 144 Mass. 440, 
 4 New Eng. Rep. 246 
 
 536^ 541» 
 
 Packer v. Bird, 71 Cal. 134 388^ 
 
 V. Welsted, 2 Sid. 39 573^ 
 
 Paducah & E. R. Co. v. Cora. 80 
 
 Ky. 146 70' 
 
 Paducah & M. R. Co. v. Hoehl, 
 
 12 Bush (Ky.)41 365^ 
 
 Paget V. Milles, 8 Doug. 43 500'^ 
 
 Paige V. Rocky Ford Canal & I. , 
 
 Co. 83 Cal. 86 ' 
 
 257'-, 258«, 41 1«, 462-3 
 
 Paine v. Woods, 108 Mass. 160. 
 
 173. 443« 
 
 V. Woods, 108 Mass. 168.. 380" 
 V. Woods, 108 Mass. 173.. 
 
 413'. 453' 
 
 Painter v. Pittsburgh, 46 Pa. 213 323* 
 
 Palmer v. Andover, 2 Cush. 600. 366 
 
 V. Delaware & H. Canal Co. 
 
 120 N. Y. 170 363^ 
 
 V. Dodd, 64 Mich. 474, 7 
 
 West. Rep. 797 393^ 
 
 V. Farrell, 129 Pa. 162.387«, 3953 
 «. Fletcher(Fleshees)l Lev. 
 
 122. 1 Sid. 167 ....175', 191 
 
 ». Lincoln, 5 Neb. 136 114' 
 
 V. Mulligan, 3 Cai. 307, 2 
 
 Am. Dec. 270 
 
 3773, 389-2, 4051, 416 
 
 V. Mulligan, 3 Cai. 307, 315 mV 
 V. Mulligan, 3 Cai. 315... 403' 
 
 v. Mulligan, 3 Cai. 319 355^ 
 
 V. Wright, 58 Ind. 489 4279 
 
 Palmyra, The. 25 U. S. 12 Wheat. 
 
 1, 17, 6 L. ed. 531, 536 368» 
 
 Pantam t. Isham, 1 Salk. 19 6113 •• 
 
 Pantou V. Holland, 17 Johns. 92, 8 
 
 Am. Dec. 369 
 
 38-2, 196^ 1961 2004 5 
 
 V. Holland, 17 Johns. 92-98 12' 
 Parish v. Kaspare, 109 Ind. 586, 
 
 7 West. Rep. 369 
 
 1763, i8i5_ 182' «, 244' 
 
 Park V. Chicago & S. W. R. Co. 
 
 43 Iowa. 636 79' 
 
 V. O'Brien, 23 Conn. 339.. 
 
 ..6ir, 612* 
 
 Parker v. Boston & M. R. Co. 3 
 
 Cush. 107 ..266, 2U6' 
 
 V. Cohoes, 10 Hun, 531. af- 
 firmed, 74N. Y. 610.. 367
 
 Ixxii 
 
 TABLE OF CASES. 
 
 Parker v. Cutler Mill Dam Co. 20 
 
 Me. 353 510^ 
 
 V. Foote, 19 Wend. 309... 
 
 180», 427' 1" 
 
 V. Foote, 19 Wend. 309, 
 
 315 427" 
 
 V. Griswold, 17 Conn. 288, 
 
 43 Am. Dec. 739 45P 
 
 V. Griswold, 17 Conn. 300. 443« 
 V. Larsen (Cal.) 24 Pac. 
 
 Rep. 989 3501 
 
 V. Lowell, 11 Gray, 353 . . - . 348^ 
 V. Macon, 39 Ga. 725 .342\ 343^ 
 V. Nightingale, 6 Allen, 341 
 
 r. 2291, 230 
 
 V. Portland Pub. Co. 69 
 
 Me. 173 18^ 19', 24 
 
 V. West Coast Packing Co. 
 17 Or. 510, 5 L. R. A. 
 
 61 561' 
 
 V. Winnipiseosree Lake C. 
 &W.Mfg^Co. 67U. S. 
 2 Black, 545, 17 L. ed, 
 
 333 79' 
 
 Parkhurst v. Foster, 1 Ld. Raym. 
 
 480 -. 14 
 
 Parkins v. Dunham, 3 Strobh. L. 
 
 224 5793 
 
 Parks V. Newburyport. 10 Gray, 
 
 28 290', 
 
 295', 2964 6^ 303-2 3035^ 3051 
 Parnaby v. Lancaster Canal Co. 
 
 11 Ad. & El. 223 
 
 -.566^3, 5683 4 
 
 Parrish «. Stephens. 1 Or. 73 79' 
 
 Parrott v. Barney, 1 Sawy. 442.. 440- 
 
 Parsons v. Clark, 76 Me. 478 510^ 
 
 V. Johnson, 68 N. Y. 65... 158« 
 V. State, 26 Tex. App. 192. 72' 
 Partch V. Spooner, 57 Vt. 583... 582' 
 Partenheimer v. Van Order, 20 
 
 Barb. 479 594^ '", 627^ 
 
 Partlow V. Haggarty, 35 Ind. 178 
 
 616=, 617', 620« 
 
 Partridge v. Gilbert, 15 N. Y. 601, 
 
 612. 2385 
 
 V. Gilbert, 15 N. Y. 614 
 209» «, 212, 2132, 216*, 
 218. 2383, 5748^ 5751^ 5705 
 V. Scott, 3 Mees. & W. 220 
 
 ...198, 200' 
 
 Pastene v. Adara.s. 49 Cal. 87-20\ 660^ 
 Patee v. Adams, 37 Kan. 133.6323, 633* 
 Patonia Land Asso. v. Feenfer 
 
 (N. J.) 5 Cent. Rep. 640 77^ 
 Patrick v. Ruffners, 2 Rob. (Va.) 
 209, 40 Am. Dec. 745. 
 
 4803, 4873 
 
 Patten v. Northern Cent. R. Co. 
 
 33 Pa. 426 664^^ 
 
 Patterson v. Arthurs, 9 Watts, 154 166> 
 
 V. Gelston. 23 Md. 432 396^ 
 
 Pattison v. Richards. 22 Barb. 146 410^^ 
 Patton V. St. Louis & S. F. R. Co. 
 
 87 Mo. 117, 1 West. 
 
 Rep. 760 6653 
 
 Paul V. Hazelton, 37 N. J. L. 106 495^ 
 V. Summerhayes, L. R. 4 
 
 Q B Div. 9 543' 
 
 Pavonia Land Asso. v. Feenfer 
 
 (N.J.) 5 Cent. Rep. 640 98'^ 
 Paxson V. Sweet, 13 N. J. L. 196. 69^ 
 
 Payne v. English, 79 Cal. 540 391* 
 
 V. Mckinley, 54 Cal. 532 .. 
 
 80^ 47P 
 
 «. Shedden, 1 Mood. & R. 
 
 382 262* 
 
 Peachey v. Rowland, 13 C. B. 182, 
 
 23 L. J. N. S. C. P. 81 395 
 Pearce v. McCleneghan, 5 Rich. 
 
 L. 178 574* 
 
 V. Scotcher, L. R. 9 Q. B. 
 
 Div. 162 4993 
 
 Pearsall v. Post, 20 Wend. Ill, 
 
 128. 188^ 
 
 V. Post, 20 Wend. Ill, 22 
 
 Wend. 425 560' 
 
 Pearson v. Rolfe, 76 Me. 380.414', 558 
 D. Spencer, 1 Best &S. 571. 
 
 note 164 
 
 Peck V. Conway, 119 Mass. 546. . 160*- 
 V. Goodberlett, 109 N. Y. 
 
 180, 12 Cent. Rep. 199 297' ^ 
 V. Herrington, 109 111. 611. 262' 
 Peddicord v. Baltimore, C. & E. 
 
 M. P. R. Co. 34 Md. 
 
 463. 92^ 
 
 Peik V. Chicago & N. W. R. Co. 
 
 94 U. S. 164, 24 L. ed. 
 
 97-. 97^ 
 
 Pelton V. East Cleveland R. Co. 
 
 22 Ohio L. J. 67, affd. 
 
 4 Harvard Law Rev. 
 
 258 2513- 
 
 Pendleton v. Fay, 2 Paige, 202.. 242' 
 Pennsylvania v. Wheeling & B. 
 
 Bridge Co. 54 U. S. 13 
 
 How. 518. 561, 14 L. 
 
 ed. 249, 267 
 
 79', 466«. 4778, 478^ 
 
 «>. Wheeling & B. Bridge 
 
 Co. 59 U. S. 18 How. 
 
 421, 15 L. ed. 435 .... 
 
 463'. 466', 478^ 479* 
 
 Pennsylvania & O. Canal Co. v. 
 
 Graham, 63 Pa. 290.. 557* 
 Pennsylvania Co. v. Marion, 104 
 
 Ind. 239, 2 West. Rep. 
 
 234 19* 
 
 V. Roney, 89 Ind. 453 5*
 
 TABLE OF CASES. 
 
 Ixxiii 
 
 Pennsylvania Co. v. Whitlock, 99 
 
 Ind. 16 653 
 
 Pennsylvania Coal Co. v. Sander- 
 son, 113 Pa. 126, 4 
 Cent. Rep. 480, 481... 
 ..148' \ 154 
 
 V. Sanderson, 113 Pa. 126, 
 
 4 Cent. Rep. 475 
 
 272^ 280, 281^ 
 
 282^283^ 293^ ', 294^ 295^ 
 
 V. Sanderson, 113 Pa. 126, 
 
 4 Cent. Rep. 483 545* 
 
 Pennsylvania R. Co. v. An^el, 41 
 
 N. J. Eq. 316, S^Cent. 
 
 Rep. 86.... 90^ 
 
 B. Aspell, 23 Pa. 147 365' 
 
 B.Baltimore &N. Y. R. Co. 
 
 37 Fed. Rep. 129 465*5 
 
 V. Henderson, 43 Pa. 449.. 128* 
 ». Hope, 80 Pa. 373, 21 Am. 
 
 Rep. 100 652' 
 
 V. Jones, 50 Pa. 417 ..164', 171^ 
 
 V. Kerr, 62 Pa. 353 049, 650 
 
 V. Matthews, 36 N. J. L. 531 363^ 
 V. 3Iiller, 112 Pa. 34, 3 
 
 Cent. Rep. 127..-288«, 460' 
 «. Mish, 115 Pa. 514. 4 
 
 Cent. Rep. 276.... 96^ 251' 
 V. Peters, 116 Pa. 206, 8 
 
 Cent. Rep. 405. 361* 
 
 Penniman v. N. Y. Balance Co. 
 
 13 How. Pr. 40 79' 
 
 Penny Pot Landing, 16 Pa. 79 .. 560' 
 Penruddock's Case, 5 Coke, 100 b 55 
 Penruddock's Case, 5 Coke, 101. 648^ 
 PensacolaGasCo. v. Pebley(Fla.) 
 
 5 So. Rep. 593 14', 80* 
 
 Pentland v. Keep, 41 Wis. 490 .. 181^ 
 People V. Brooklyn, 65 N. Y. 349 290' 
 
 V. Canal Appraisers, 13 
 
 Wend. 355. 530^, 53P 
 
 V. Canal Appraisers, 33 N. 
 
 Y. 461. 
 
 376= «, 386', 389^ 5326 
 
 V. Central R. Co. 42 N. Y. 
 
 315 397' 
 
 V. Chicago West Div.R. Co. 
 118 111. 113, 5 West. 
 Rep. 517. 87* 
 
 V. Civil Service Super- 
 visory and Examining 
 Boards, 3 How. Pr. N. 
 S. 43, 44, 47 440^ 
 
 V. Cunningham, 1 Denio, 
 
 524 75', 247^ 250, 560' 
 
 V. Cunningham, 1 Denio, 
 
 536 7P 
 
 V. Decker (Sup. Ct.) 32 N. 
 
 Y. S. R. 956 5373 
 
 «. Duncan. 41 Cal. 508.-.. 487' 
 
 People V. Duncan, 41 Cal. 510... 485 
 V. Erwin, 4 Denio, 129.-48', 52* 
 V. Gutchess, 48 Barb. 656. 
 
 463S 512» 
 
 V. Haines, 49 X. Y. 587... 292' 
 
 V. Hiizen, 52 llun, 370 541* 
 
 V. Ilazen, 121 N. Y. 313. .537^ * 
 V. Horton, 64 N. Y. 610... 468' 
 «. Jackson, 7 Mich. 432... 70^^ 
 V. Jones, 112 N. Y. 598... 400* 
 V. Kerr, 27 N. Y. 188.. 35^ 247* 
 V. Kirsch, 67 Mich. 539, 13 
 
 West. Rep. 62.... 535*, 540* 
 v. Lawrence. 54 Barb. 589 93* 
 V. Lowndes, 55 Hun, 409.. 
 
 385^ 435', 494', 537' 
 
 V. Mauran, 5 Denio, 389.. 88'' 
 V. New York, 18 Abb. N. 
 
 C. 123 247* 
 
 V. New York, 59 How. Pr. 
 
 277 99' 
 
 V. Piatt, 17 Johns. 195, 209 
 
 210 501^ 530' 
 
 V. Piatt, 17 Johns. 195, 211 
 
 ..355*, 377', 452^ 463^ 550» 
 V. Piatt, 17 Johns. 216, 8 
 
 Am. Dec. 382 416' 
 
 V. Reed, 47 Barb. 235 531' 
 
 V. St. Louis, 10 III. 351.377^ 468* 
 V. Tibbetts, 19 N. Y. 523.. 
 
 376^ 378* 
 
 . V. Townsend, 3 Hill, 479.. 478* 
 V. Vanderbilt, 26 N.Y. 287 468' 
 People's Ice Co. v. The Excelsior, 
 
 44 Mich, 229 261', 517' 
 
 Peoria v. Johnston, 56 111. 51 580* 
 
 V. Simpson, 110 Hi. 294, 300 45* 
 Peoria & R I. R. Co. v. Birkett, 
 
 62 111.333 89* 
 
 Perdue v. Chinguacousv Twp. 25 
 
 U. C. Q. B. 61.. -.327'. 361* 
 Peregoy®. McKissick,79Cal. 572.446' * 
 Pere Marquette Boom. Co. v. 
 
 Adams, 44 3Iich. 404. 517* 
 Perez v. Rabaud, 76 Tex. 191, 7 
 
 L. R. A. 620 61* 
 
 Perkins «. Dow, 1 Root, 535 442* 
 
 V. Dunham, 3 Strobh. L. 
 
 224 -. 571' 
 
 Perley v. Chandler, 6 Mass. 454. 258' 
 V. Eastern R. Co. 98 Mass. 
 
 414 653', 654', 6Gt' 
 
 V. Langley, 7 N. H. 233... 189* 
 Permoli v. Municipality No. 1 of 
 New Orleans, 44 U. S. 
 3 How. 589, 11 L. ed. 
 
 739 372' 
 
 Prerogative Case, 12 Coke, 13... 6. 
 
 Perrin v. Gartield, 37 Vt. 304.... 188-* 
 
 V. Garfield, 37 Vt. 310.... 263*
 
 Ixxiv 
 
 TABLE OF CASES. 
 
 Periine v. Taylor, 43 N. J. Eq. 
 
 128!.. 1542 
 
 Perry v. New Orleans, M. & C. 
 
 R. Co. 55 Ala. 413, 424 92i 
 v. Phipps, 10 Ired. L. 259. 628' 
 
 V. Pratt, 31 Conn. 442 SO?' 
 
 V. Worcester, 6 Gray, 544. 
 
 292^ 311S 316', 336^ ^ 349* 
 Peter «. Kendal, 6 Barn. & C. 
 
 703. 480- 9 
 
 Peters v. New Orleans, M. & C. 
 R. Co. 56 Ala. 528 . . . . 
 
 403^ 404'-', 408' 5 
 
 Peterson ■». Kier, 2 Pittsb. Rep. 
 
 191 80« 
 
 V. McCullough, 50 Ind. 41. 427^ 
 ». The Cliandos, 4 Fed. 
 
 Rep. 649 370' 
 
 Pettengill v. Yonkers, 116 N. Y. 
 
 558 ....310% 318', 337' 
 
 Pettigrew v. Evansville, 25 Wis. 
 223, 227, 3 Am. Rep. 
 
 50 
 
 147^ 2915, 3003 5, 304', 322' 
 7). Evansville, 25 Wis. 223, 
 
 231, 232, 236 2922, 4355 
 
 V. Evansville, 25 Wis. 229. 299^ 
 Pettingill v. Porter, 8 Allen, 1... 167'^ 
 Peverly v. Boston, 136 Mass. 366 365' 
 Pew «. Buchanan, 72 Iowa, 637. 224^ 
 Peyton v. London, 9 Barn. & C. 
 
 729. 192 
 
 V. St. Thomas Hospital, 9 
 
 Barn. & C. 725 233^ 
 
 V. Texas & P. R. Co. 41 La. 
 
 Ann. 861 5^ 
 
 Phelps V. Mankato, 23 Minn. 276 348* 
 V. Nowlen, 72 N. Y. 39, 28 
 
 Am. Rep. 93 12', 148^ 
 
 V. Racey, 60 N. Y. 10..533^ 542 
 Pheyseyy.Vicary, 16 Mees. & W. 
 
 484. 174«, 24P 
 
 Philadelphia & R. R. Co. v. An- 
 derson, 94 Pa. 351-155'S 332' 
 li. Hendrickson. 80 Pa. 182 6653 
 V. Hendrickson, 80 Pa. 183, 
 
 21 Am. Rep. 97 669^ 
 
 «. New England Transp. 
 
 Co. 24 Fed. Rep. 505. 369^ 
 «. New York, 38 Fed. Rep. 
 
 159 3903 
 
 «. Yeiser, 8 Pa. 366 133' 
 
 v. Yeiser, 8 Pa. 374 440- 
 
 Philadelphia & T. R. Co., Re, 6 
 
 Whart. 25 92^ 
 
 Philadelphia R. Co. i). Schultz, 93 
 
 Pa 345 665'* 
 
 Philadelphia, W. & B.' R." Co.' V. 
 Constable, 39 Md. 
 149 654' 
 
 Philadelphia, W. & B. R. Co. v. 
 Davis, 68 Md. 261, 10 
 
 Cent. Rep. 553 329* 
 
 Philbrick v. Ewing, 97 Mass. 133 169« 
 Phillips V. Bordman, 4 Allen, 
 
 147 ....211, 214', 233* 
 
 «. Bowers, 7 Gray, 24 163' 
 
 i\ I)e Wald. 79 Ga. 732... 612^ 
 V. Mankato, 23 Minn. 276. 310^ 
 V. Phillips, 48 Pa. 178.... 
 
 166', 164', 5748 
 
 «. Ritchie County Ct. 31 
 
 W. Va. 477 3633 
 
 V. Sherman, 64 Me. 174.283', 284 
 «.Waterhouse, 69 Iowa, 199 
 
 302', 3033 
 
 Phinizy v. Augusta, 47 Ga. 263.. 
 
 ..290% 302', 321', 327= 
 
 Phipps 1}. Johnson, 99 Mass. 26.. 
 
 158«, 265* 
 
 Phoenix Ins. Co. v. Continental 
 
 Ins. Co. 87 N. Y. 400. 160* 
 Pickard v. Howe, 12 Met. 198... 603* 
 1). Smith, 10 C. B. N. S. 470 1503 
 Pickens ti. Diecker, 21 Ohio St. 
 
 212 610*, 6I93 
 
 Pickering v. Orange, 2 111. 492.. 606* 
 V. Stopler, 5 Serg. & R. 107 419* 
 Pickman v. Peabody. 145 Mass. 
 480, 5 New Eng. Rep. 
 
 394 4583 
 
 Pierce v. Cleland, 133 Pa. 189, 7 
 
 L. R. A. 752 1643, 1714 
 
 V. Dart, 7 Cow. 609 803, 4594 
 
 V. Drew, 136 Mass. 75, 49 
 
 Am. Rep. 7 97- 
 
 V. German Sav. & Loan 
 
 Soc. 72 Cal. 180 54* 
 
 «. Keator, 70 N. Y. 421... 158^ 
 V. Selleck,18Conn.321.169«, 425' 
 v. Whitcomb, 48 Vt. 127.. 
 
 191, 233*, 25' 
 
 B. Worcester & N. R. Co. 
 
 105 Mass. 199 654^ 
 
 Pierce Mill Co. v. Koltermann, 26 
 
 Neb. 722 433« 
 
 Pierre «. Fernald, 26 Me. 436 ... 180= 
 Pierrepont v. Loveless, 72 N. Y. 
 
 211, 216 ....389^ 403', 405' 
 Pierson d. Glean, 14 N. J. L. 37. 55 
 
 V. Post, 3 Caines, 175 543' 
 
 Piggott 1). Eastern Counties R. Co. 
 
 3C. B. 228 664" 
 
 v. Eastern Counties R. Co. 
 
 3C. B. 229 648*, 654' 
 
 Pigott V. Lillv. 55 Mich. 150 .... 5- 
 Pillsbury v. Brown, 82 Me. 450.. 
 
 703, 2344^ 247= 
 
 V. Moore, 44 Me. 154 
 
 -...56', 79*, 425*, 427 \ 571'
 
 TABLE OF CASES. 
 
 Ixxv 
 
 Pinckard v. :\rilmine, 76 111. 453. 184'^ 
 Pine City v. iluncli (Minn.) 6 L. 
 
 K. A. 763, and 7iote... 76^ 
 Pingree v. McDutTe, 56 N. H. 306 167' 
 
 Pinuey v. Luce, 44 Minn. 367 360- 
 
 V. Luce (Minn.) 46 N. W. 
 
 Rep. 561 436^ 
 
 Piicher v. Dove, 99 Ind. 177 183*^ 
 
 Pitkin V. Olmstead, 1 Root, 217. 531« 
 Pitts V. Lancaster Mills, 13 Met. 
 
 156.. ..424^ 448« 
 
 Pittsburgh v. Grier, 23 Pa. 54... 
 
 ..342', 345', 566', 567\ 610« 
 V. Scott, 1 Pa. 309.--.126S 475- 
 Pittsburgh & L. E. R. Co. v. 
 
 Bruce, 102 Pa. 23 265' 
 
 Pittsburgh & State Line R. Co. v. 
 Rotbschild(Pa.)4Cent. 
 
 Rep. 107 264' 
 
 Pittsburgh, C. & St. L. R. Co. v. 
 
 Campbell, 86 111. 443-. 648^ 
 V. Conn, 104 Ind." 64, 1 
 
 West. Rep. 901.- 106^ 
 
 i\ Culver, 60 ind. 469 653' 
 
 v. Hixon, 79 Ind. Ill 653' 
 
 V. Hixon, 109 Ind. 235. 8 
 
 West. Rep. 888-. 648^ 
 
 1). Jones, 86 Ind. 496_.241', 665- 
 
 1). Nelson, 51 Ind. 150 666= 
 
 V. Shields, 47 Ohio St. — , 
 
 8L. R. A. 464.. 29' 
 
 v. Spencer, 98 Ind. 186 ... 660^ 
 «. Williams, 74 Ind. 462 .. 155^ 
 Pittsburgh, Ft. W. & C. R. Co. 
 V. Bingham, 29 Ohio 
 
 St. 364 --- 24'. 26^ 
 
 Pixley V. Clark, 32 Barb. 268 287* 
 
 v. Clark, 35 N. Y. 520.271, 
 
 280-', 430-, 440', 545', 548^ 
 Plant V. Long Island R. Co. 10 
 
 Barb. 26 73^ 
 
 Piatt V. Eggleston, 20 Ohio St. 
 
 414 --.- 237 
 
 u Pennsylvania Co. 43 Ohio 
 
 St. 223, 1 West. Rep. 11 265' 
 Platz V. Cohoes, 89 N. Y. 224... 440'' 
 Plimpton V. Converse, 42 Vt. 712 
 
 - 176^, 5732 
 
 Phimer v. Harper, 3 N. H. 88.-. 55 
 
 V. Lord, 9 Allen, 455 183^ 
 
 Plumleigh v. Dawson, 6 111. 544, 
 
 41 Am. Dec. 199 425^ 
 
 Plumley v. Birge, 124 Mass. 57.. 632^ 
 Plymouth r. Milner, 117 Ind. 
 
 324... 128^ 
 
 Poeppers v. Missouri, K. & T. R. 
 
 Co. 67 Mo. 715 654' 
 
 Polden V. Bastard, 4 Best & S. 
 
 258, 264 1862 
 
 Pollard V. Barnes, 2 Cush. 191... 425= 
 
 Pollard V. Hagan, ii U. S. 3 How. 
 213, 11 L. ed. 565 ... 
 
 371\372', 
 
 378-, 379% 492', 493'. 494» 
 
 PoUett V. Long, 56 N. Y. 200 
 
 432', 650. 655' 
 
 Pollexfen v. Crispin, 1 Vent. 122 498- 
 Polly V. McCall, 37 Ala. 20-32 .. 438" 
 Pouifret v. Ricroft, 1 Saund. 323, 
 
 voi^. 168\ 169^ 
 
 Pond V. Metronolitan E. R. Co. 
 
 42 Hun, .'367 180= 
 
 Pontiac v. Carter. 32 Mich. 164.. 305- 
 Pope V. Devereaux, 5 Graj% 409. 
 
 571', 578' •• 
 
 1). Kinman, 54 Cal. 3 .404'*, 444'^ 
 V. O'llara, 48 N. Y. 446.. 216' 
 r. O'llara. 48 K Y. 453 .. 580* 
 Popplewell V. Pierce, 10 Cush. 
 
 509 
 
 617S 619', 630" ', 631-, 630'' 
 Porter v. Durham, 74 N. C. 767.. 
 
 - 2953, 298% 2995 
 
 V. North Mo. R. Co. 33 Mo. 
 
 128 73', 93' 
 
 1). Shehan, 7 Gray, 435 495'^ 
 
 «. Sullivan,7 Gray, 441, 444 341' 
 Porter County v. Dombke, 94 Ind. 
 
 72 128' 
 
 Portland v. Richardson, 54 Me. 
 
 46... 108S 1^9', 114' 
 
 Portland & W. Y,. R. Co. v. Port- 
 land, 14 Or. 188. 9P 
 
 Post V. Kreischer, 103 N. Y. 110, 
 
 4 Cent. Rep. 219 541 « 
 
 v. Munn, 4 N. J. L. 61.538^ 539 
 V. Pearsall, 23 Wend. 425- 
 
 --188', 564 
 
 «. Pearsall, 22 Wend.425,432 188* 
 
 e. Pearsall, 22 Wend. 438. 15s'^ 
 
 Postlethwaite v. Payne, 8 Ind. 104 427'^ 
 
 Potomac Steamboat Co. v. Upper 
 
 Potomac Steamboat 
 
 Co. 109 U.S. 672, 27 L. 
 
 ed. 1070 561=' 
 
 Potter V. Howe, 141 Mass. 358, 3 
 
 New Eng. Rep. 167... 453' 
 V. Menasha, 30 Wis. 492 .. 79' 
 
 V. White, 6 Bosw. 644 233' 
 
 V. White, 6 Bosw. 647 213' 
 
 Pottstown Gas Co. v. Murphy, 39 
 Pa 257 
 
 -..'- 8S'l54SY55"'' 278', 388-^ 
 Pound V. Turck, 95 U. S. 459, 24 
 
 L. ed. 525 377^ 
 
 Powell V Deveney, 3 Cush. 300.. 654' 
 
 V. Mills, 37 Miss. 691 488= 
 
 T. Sims, 5 W. Va. 1 180' 
 
 Power V. Athens, 99 N. Y. 592, 
 
 598 463'
 
 Ixxvi 
 
 TABLE OF CASES. 
 
 Power V. Athens. 99 N. Y. 601, 1 
 
 Cent. Rep. 181 
 
 Powers' Ap|ieal, 125 Pa. 1T5 
 
 Powers V. Craig, 22 Neb. 621 
 
 6453, 
 
 v. Harlow, 53 Mich. 507.. 
 
 123', 
 
 V. Irish, 23 Mich. 429. -W', 
 
 V. Osgood, 102 Mass. 454_. 
 
 Pratherw. Jeffersonvllle, M. & I. 
 
 R. Co. 52 Ind. 36 
 
 ». Lexington, 13 B. Mon. 
 
 559 - 
 
 Pratt V. Atlantic & St. L. R. Co. 
 
 42 Me. 579 240^ 
 
 V. DesMoines N. W. R. Co. 
 
 72 Iowa, 249 
 
 Pray v. Jersey City, 32 K J. L. 
 
 394 
 
 Preables «. Hannaford, 18 Me. 106 
 Prendorill v. Kennedy, 34 How. 
 
 Pr. 416 :--.-- 
 
 Prescott «. Williams, 5 Met. 429- 
 Presland v. Bingbam, L. R. 41 Ch. 
 
 Div.'268 
 
 Pressey r. Wirtb, 3 Allen, 191 .. 
 Preston v. Dubuc[ue & P. R. Co. 
 
 11 Iowa, 15 ...-- 
 
 V. Navasota, 34 Tex. 684-- 
 Pretly v. Bickmore, L. R. 8 0. P. 
 
 401.41-', 4S, 49, 52-, 62'" 
 Prideaux v. Mineral Point, 43 Wis. 
 
 513 316', 
 
 Prime V. Twenty Third St. R. Co. 
 
 1 Abb. N. C. 63. 
 
 Prince 'c. McCoy, 40 Iowa, 533.. 
 
 556'^ 
 665^ 
 
 597^ 
 
 47P 
 428-^ 
 
 90^ 
 337' 
 654- 
 
 91" 
 
 3413 
 540-' 
 
 77= 
 356' 
 
 179' 
 586° 
 
 265' 
 
 184^ 
 
 63 
 
 332' 
 1023 
 
 475' 
 395' 
 602« 
 
 201^ 
 
 540- 
 
 Pulley V. Municipality No. 2, 18 
 
 La. 278.. 396' 
 
 Pumpelly v. Green Bay Co. 80 U. 
 
 S. 13 W^all. 166. 20 L. 
 
 ed. 557 2915. 4331^ 4355 
 
 Purcell t\ Conrad, 84 Va. 557 ..- 541« 
 Putnam v. Payne, 13 Johns. 312- 
 
 625'. 627«, 6289' 
 
 Pye V. Mankato, 36 Minn. 373, 1 
 
 Am. St. Rep. 671 
 
 291'- 297'* 326'' ^' 
 Pyer». Carter," 'l HiirL .fc'N. 916 
 
 .168,171, 
 
 17r, 1746, 186^ 2413, 574* 
 Pyle V. Richards, 17 Neb. 181... 299^ 
 
 Q. 
 
 Quarman v. Burnett, 6 Mees. & 
 
 W. 499 1493 
 
 Quimby v. Woodbury, 63 N. H. 
 
 370 6303 
 
 Quincy v. Jones, 76 111. 231, 20 
 
 Am. Rep. 243.38', 198'^ 200*" 
 Quincv Canal Co. v. Newcomb, 7 
 
 Met. 276. 283 75\ 474^ 
 
 Quinn 1). Morse, 130 Mass, 317, 
 
 322. 212 
 
 «. South Carolina R. Co. 29 
 
 S. C. 381, 1 L. R. A. 
 
 682 1471- 
 
 Quintini v. Bay St. Louis, 64 Miss. 
 
 483 9°- 
 
 Prior V. Comstock, 17 R. I. .. 
 
 Pritchard v. Stevens, 6 T. R. 522 
 
 Proctor V. Putnam Machine Co. 
 
 137 Mass. 159 
 
 V. Wells, 103 Mass. 216... 
 
 495'. 536', 
 
 Proprietors of Mills v. Braintree 
 Water Supply Co. 149 
 Mass. 478, 4L. R. A. 
 
 272.. 283^ 
 
 4183, 4543 4 6^ 456-2^ 4576^ 4581 
 
 Prospect Park & C. I. R. Co., Re, 
 
 16 Hun, 261 - 90' 
 
 Prosser ^•. Ottumwa, 42 Iowa, 509 475' 
 I. Wapello Co. 18 Iowa, 
 
 327 .--- 480-^ 
 
 Protheroe v. 3Iathews, 5 Car. & P. 
 
 581 628« 
 
 Protzman v. Indianapolis & C. R. 
 
 Co. 9 Ind. 467 82' - 
 
 Prowaltain r. Philadelphia (Pa.) 
 
 2 Cent. Rep. 332 174» 
 
 Pue V. Pue, 4 Md. Ch. 3«6 236« 
 
 R. 
 
 Race V. Ward, 30 Eng. L. & Eq. 
 
 187 410» 
 
 Radcliff V. Brooklyn, 4 N. Y. 195 
 
 307«, 3213 
 
 ». Brooklyn, 4 N. Y. 199-. 409' 
 
 Ragan v. McCoy, 29 Mo. 367 485* 
 
 Raiford v. Mississippi & C. R. Co. 
 
 43 Miss. 233 593i' 
 
 Randall v. Jacksonville St. R. Co. 
 
 19 Fla. 409, 17 Am. & 
 
 Eng. R. R. Cas. 184.. 93* 
 v. McLaughlin, 10 Allen, 
 
 366. -168^ « 
 
 Randle v. Pacilic R. Co. 65 Mo. 
 
 332 735 
 
 Randolph v. Bloomfield, 77 Iowa, 
 
 50 5493^ 
 
 V. Braintree, 4 Mass. 315, 
 
 316---- ...495', 532" 
 
 Rankin v. Ingwersen, 49 N. J. L. 
 
 481. 8 Cent. Rep. 371- 
 
 .. 44^ 48^ 50, 52', 61', 64^
 
 TABLE OF CASES. 
 
 Ixxvii 
 
 Eapbo Twp. V. Moore, 68 Pa. 404 33P 
 Raritan W. P. Co. v. Vegbte, 21 
 
 N. J. Eq. 478 427^ 
 
 Ralhke v. Garduer, 134 Mass. 14. 
 
 16 295', 348% 3613 
 
 Eawstron v. Taylor, 11 Exch. 369, 
 
 378, 384 -...12', 147^ 296- « 
 V. Taylor, 33 Eng. L. & 
 
 Eq. 428 ....280-', 300'' 
 
 Ray V. Fletcher, 12 Cusb. 200.167% 419- 
 Razzo V. Varni (Cal.)21 Pac. Rep. 
 
 762 4o9- 
 
 Rea V. Hampton, 101 N. C. 51... 541'^ 
 Read v. Edwards, 34 L. J. N. S. 
 
 C P 32 594' 
 
 V. Nichols, li8'N.'y."224' 
 
 7L. R. A. 130.... 650', 655' 
 V, Peniisvlvania R. Co. 44 
 
 N. J. L. 280.641-. 642% 649^ 
 Readhead v. Midland R. Co. L. 
 
 R. 4Q. B. 379 133' 
 
 Reardon v. Thompson, 149 Mass. 
 
 267 23% 24', 25% 26^ 
 
 Reba, The, 2i Fed. Rep. 546 369^ 
 
 Rector v. Biickhart, 3 Hill, 193 
 
 49% 51- 
 
 Redman v. Forman, 83 Ky. 215. 443- 
 Red River Mills v. Wright, 30 
 Minn.249, 44Am.Rep. 
 
 194. 28S' 
 
 Reduction Works v. Stevenson, 20 
 
 Nev. 269, 4 L. R. A. 60 444' 
 Reed v. Alleghany, 79 Pa. 300... 323- 
 
 v. Belfast, 20 Me. 246 339' 
 
 V. Edwards, 17 C. B. N. S. 
 
 245.. 591% 615% 619' 
 
 V. Gannon, 50 N. Y. 345, 
 
 349, 350 242' 
 
 V. West. 16 Gray, 284 574- 
 
 Reedie «. London <k N.W. R. Co. 
 
 4 Exch. 244 583' 
 
 Reeves v. Toronto, 21 U. C. Q. B. 
 
 157 330% 36P 
 
 V. Toronto, 21 U. C. Q. B. 
 
 160-. 293^ 
 
 Reg. V. Betts, 16 Q. B. 1022 468' 
 
 ■V. Chorley, 12 Q. B. 515.. 
 
 .571', 578' 
 
 V. Cubitt, L. R. 22 Q. B. 
 
 Div. 623 496^ 
 
 V. Eastern Counties R. Co. 
 
 2Q. B. 569.. 35' 
 
 V. Great Northern R. Co. 
 
 14 Q. B. 25 482« 
 
 V. Randall, 1 Car. & M. 496 468' 
 V. United Kingdom E. Tel. 
 
 Co. 3Fost. &F. 73-96, 251' 
 T. United Kingdom E. Tel. 
 Co. 31 L. J. N. S. M. 
 C. 167 W 
 
 Reg. v. Watts, 1 Salk. 357 ..104% 148 
 Rehberg v. New York, 91 N. Y. 
 
 137 103^ 
 
 Rehler v. Western N. Y. & P. R. 
 
 Co. 55 Hun, 604 597 
 
 Reicbert v. St. Louis & S. F. R. 
 
 Co. 51 Ark. 491, 5 L. 
 
 R. A. 183 251- 
 
 Reid V. GifFord. Hopk. Ch. 416, 2 
 
 N. Y. Ch. L. ed. 470 . 548' 
 V. Gifl'ord. 6 Johns. Ch. 19, 
 
 2 N. Y. Ch. L. ed. 40. 427* 
 Reilly v. Booth, L. R. 44 Ch Div. 
 
 12 168^ 
 
 Reinbard v. New York, 3 Daly, 
 
 243. 343- 
 
 Reinhardt v. Menta.sti, L. R. 42 
 
 Ch. Div. 685, 40 Alb. . 
 
 L. J. 490 9% 151-, 1533 
 
 Reise v. Enos (Wis.) 8 L. R. A. 
 
 617 175^% 176' 
 
 Reliance, The, 4 Woods, C. C. 
 
 420. ISS'o 
 
 Remele v. Donahue, 54 Vt. 555.. 626- 
 
 Renuyson's App. 94 Pa. 147 19P 
 
 Reno S. M. ifc Reduction AVorks 
 
 v. Stevenson, 20 Nev. 
 
 269, 4 L. R. A. 60.... 447- 
 Rensselaer t\ Leooold, 106 Ind. 
 
 29, 3 West. Rep. 874 . 82' 
 Rensselaer &, S. R. Co. r. Davis, 
 
 43 N. Y 137, 146 .... 898 
 Ren wick v. Morris, 3 Hill, 621 .. 35' 
 V. Morris, 3 Hill, 621, 7 
 
 Hill, 575 247' 
 
 Report of the Judges, 3 Binn. 595 443^ 
 Requa v. Rochester, 45 N. Y. 129 
 
 --.. ..342', 3432 
 
 Rerick v. Kern, 14 Serg. & R. 267 182' 
 Respublica v. Arnold, 3 Yeates, 
 
 417 76', 468' 
 
 V. Sparhawk, 1 U. S. 1 Dall. 
 
 357, 362, 1 L. ed. 174. 
 
 176. 6', 6473 
 
 V. Sparhawk, 1 U. S. 1 Dall. 
 
 359, 1 L. ed. 175 6^ 
 
 Rex V. Cross, 3 Camp. 224 75', 249 
 
 V. Daman, 2 Barn. & Aid. 
 
 378 528- 
 
 V. Grosvenor, 2 Stark. 511. 468' 
 V. Hnggins, 2 Ld. Raym. 
 
 1574 629^ 
 
 V. Huffffins, 2 Ld. Raym. 
 
 1574, 1583 587' 
 
 V. Joues, 3 Camp. 230 
 
 .75', 101% 2473, 249 
 
 v. Medley, 6 Car. & P. 
 
 392 2472 
 
 D. Moore, 3 Barn. & Ad. 
 
 184 48', 52'
 
 XXVlll 
 
 TABLE OF CASES. 
 
 Rex V. Morris, 1 Barn. & Ad. 
 
 441... 35'^ 468' 
 
 V. Nicholson, 12 East, 334. 483'' 
 V. Paffliam Sewer Corrirs. 
 
 8 Barn. & C. 35i..300, 461'' 
 V. Pappineaii. 1 Sir. 6S6... 131^ 
 V. Pease, 4 Barn. & Ad. 30 89' 
 V. Pedley, 1 Ad. & El. 823 
 
 ...45, 
 
 481,493, 50', 51^52'^ ^ 61^,64 
 V. Russell, 6 Barn.& C. 566 468' 
 V. Russell, 6 East, 427.... 
 
 .75', 24:34^ 248 
 
 T. Tindall, 6 Ad. & El. 143 468' 
 V. Tratlord, 1 Barn. & Ad. 
 
 874, 8 Bing 204 46P 
 
 V. Ward, 4 Ad. «fe El. 384. 468' 
 V. Yarborougli, 3 Barn. & 
 
 C. 91 3933, 397^ 
 
 V. Yarborough, 3 Barn. & 
 C. 91, 2 Bligb, N. R. 
 
 147. 397" 
 
 «. Yarborough, 3 Barn. & 
 C. 91, 2 Bligli, N. R. 
 147, 1 Dow. & 0.178.. 400 
 Rexroth v. Coon, 15 R. I. 35, 1 
 
 New Eng. Rep. 35.... 587'^ ^ 
 Reynolds v. Burlington, 52 Vt. 300 362^ 
 V. Clarke, 2 Ld. Raym. 
 
 1399, 1 Str. 634 131" 
 
 V. Hussey, 64 N. H. 64, 3 
 New Eng. Rep. 722.. 
 
 605', 606^ 6I95 
 
 V. Hussey, 64 H. N. 64, 2 
 New Eng. Rep. 723.. 
 
 ^ 607«, 6103 
 
 V. McArthur, 27 U. S. 2 
 
 Pet. 417, 7 L. ed. 470. 376'^ 
 0. Phillips, 13 111. A pp. 557 628' 
 Rhinelander. Re, 68 N. Y. 105.. 292' 
 Rhoads v. Davidheiser, 133 Pa. 
 
 226 460« 
 
 Rhodes v. Cleveland, 10 Ohio, 159 
 
 3063, 3431 
 
 V. Otis, 33 Ala. 578 
 
 376^ 377^405^ 406,406', 550^ 
 V. Otis, 33 Ala. 578, 596... 3773 
 
 V. Otis, 33 Ala. 592 4033 
 
 V. Whitehead, 27 Tex. 304 418'^ 
 Ribordy v. Pellachoud, 28 111. 
 
 App. 303 3043 
 
 Ricard v. Williams, 20 U. S. 7 
 
 Wheat. 60, 5 L. ed. 398 234* 
 Rice V. Des Moines, 40 Iowa, 638 128' 
 0. Evansville, 108 Ind. 7, 6 
 West. Rep. 242. 244, 58 
 
 Am. Rep. 22... 
 
 ..325^ 326^ 332', 357«, 358' 
 
 r. Flint, 67 Mich. 401 326^ 
 
 V. Ruddiman, 10 Mich. 125 517^ 
 
 Rich V. Basterfield. 4 C. B. 783.. 50' 
 V. Basterfield, 4 C. B. 783, 
 
 802 45, 149*^ 
 
 V. Basterfield, 4 C. B. 784. 
 
 47', 52. 61^ 64 
 
 Richards «. Fuqua, 28 Miss. 792.4883 =• 
 V. Peters, 70 Mich. 286, 14 
 
 West. Rep. 628 ..549' * 
 
 V. Rose, 9 Exch. 218. 209» 
 
 V. Rough, 53 Mich. 212.... 143' 
 V. Schleusener, 41 Minn. 49 645"*^ 
 Richardson v. Boston, 60 U. S. 19 
 How. 263. 15L. ed. 639 
 ...74^ 247^ 292-', 311S 383'^ 
 V. Boston, 60 U. S. 19 How. 
 
 270, 15 L. ed. 642 326^* 
 
 V. Boston, 65 U. S. 24 How. 
 
 188, 16 L. ed. 625.... 359»- 
 V. Kier, 34 Cal. 63, 37 Cal. 
 
 263 256' 
 
 V. Milburn. 11 Md. 340.5913, 592« 
 V. Palmer, 38 H. N. 212, 220 161' 
 V. Pond, 15 Gray, 387. 180'^ 577* 
 V. Prentiss, 48 Mich. 88... 517- 
 '0. Tobey, 121 Mass. 457... 220^ 
 Richmond v. Courtney, 32 Gratt. 
 
 798 100'' 
 
 ». Long, 17 Gratt. 375 842' 
 
 V. Long, 17 Gratt. 382.335', 336* 
 Richmond & D. R. Co. v. How- 
 ard, 79 Ga. 44 362»- 
 
 V. Pickleseimer, 85 Va. 798 
 
 ...3633, 365' 
 
 Richmond Mfg. Co. v. Atlantic 
 DeLaine Co. 10 R. I. 
 
 106 8^ 
 
 V. Atlantic DeLaine Co. 10 
 R. 1. 116, 14 Am. Rep. 
 
 658 29r^ 
 
 Riddle v. Locks & Canals, 7 Mass. 
 
 169, 187 338, 3393 
 
 Rideout v. Knox, 148 Mass. 368, 
 
 2L. R. A. 81... -10*, 12, r« 
 Rider v. White, 65 N. Y. 54, 22 
 
 Am. Rep. 600. . 605' ^ 619' ^ 
 Ridgely v. Johnson, 1 Bland, 
 
 Ch. 316, note 397' 
 
 Ridgewav v. Holliday, 59 Mo. 444 230' 
 Ridgway v. Ludlow, 58 Ind. 248 399"> 
 Riehle -o. Heulings, 38 N. J. Eq. 
 
 20 580* 
 
 Riest V. Goshen, 42 Ind. 339 126'^ 
 
 Rigg V. Lonsdale, 1 Hurl. & N. 
 
 923. 543' 
 
 Riley v. Simp.son, 83 Cal. 217, 7 
 
 L. R. A. 622.-27^ 493. 5V^ 
 Rindge v. Baker, 57 N. Y. 209.. 
 
 2045, 211, 224' *, 226 
 
 V. Sargent, 64 N. H. 294, 4 
 
 New Eng. Rep. 523.. 410''
 
 TABLE OF CASES. 
 
 Ixxix 
 
 Ring ». Cohoes, 77 N. Y. 83 
 
 ....99-, 1023, 659' 
 
 Rio Grande R. Co. v. Brownsville, 
 
 45 Tex. 88 93^ 9-t> 
 
 Ritgcr c. Parker, 8 Cush. 145 573* 
 
 V. Parker, 8 Cush. 147.... 574' 
 Ritterman i'. Ropes, 19 Jones & S. 
 
 25,29 193 
 
 Rix V. Johnson, 5 N. H. 520 ....4613 4 
 Roath V. Driscoll, 20 Conn. 533. 
 
 544 ...12^ 280' 
 
 Robbins ». Barnes, Hobart, 131.. 
 
 175',•4l9^ 573- 
 
 ■ V. Chicago. 71 U. S. 4 Wall. 
 657, 18 L. ed. 427.... 
 
 39^ «, 99', 342', 343^ 
 
 V. Chicago, 71 U. S. 4 Wall. 
 657, 079, 18 L. ed. 427, 
 
 432 114' 
 
 V. Jones, 15 C. B. N. S. 221 
 
 ...61^ 693 
 
 V. Mount, 4 Robt. 553 2563 
 
 Roberson v. Kirby, 7 Jones, L. 
 
 477- - 644« 
 
 Robert v. Sadler, 104 N. Y. 229, 
 
 6 Cent. Rep. 208.-70', 9P 
 Roberts v. Baumearten, 110 N.Y. 
 
 380, 13 Cent. Rep. 410 385« 
 V. Jenkins, 21 N. H. 116.. 034'' 
 v. Jenkins, 21 N. H. 119.. 635^ 
 V. Johnson, 58 N. Y. 613.. 
 
 ....1363, 147' 
 
 V. Ogle. 30 111. 459.... 602^ 603'^ 
 Robertson v. Miller, 40 Conn. 40. 547' 
 Robeson v. Pittenger, 2 N. J. Eq. 
 
 57 179^ 
 
 Robinson t\. Black Diamond C. 
 
 Co. 50 Cal. 460 256' 
 
 V. Black Diamond Coal Co. 
 57 Cal. 412, 40 Am. 
 
 Rep. 118 288' 
 
 V. Chamberlain, 34 N. Y. 
 
 389 ....3283, 3422 
 
 V. Greenville, 42 Ohio St. 
 625, 51 Am. Rep. 857, 
 
 note 3103 
 
 V. Malhwick, 5 Neb. 255.. 481' 
 V. New York & E. R. 
 
 Co. 27 Barb. 512 247^ 
 
 V. New York C. & H. R. R. 
 
 Co. 20 Blatchf. 338... 155'" 
 V. Shanks, 110 Ind. 125... 295' 
 V. Thrailkill, 110 Ind. 117, 
 
 8 West. Rep. 556.176', 182» 
 Robison v. Fetterman (Pa.) 12 
 
 Cent. Rep. 566 603« 
 
 Robson V. Mississippi River Log- 
 ging Co. 43 Fed. Rep. 
 
 364 557^ 
 
 Roche V. Ullman, 104 111. 11.2243, 227 
 
 Rochester v. Simpson, 57 Hun. 36 
 
 430*, 540» 
 
 Rochester White Lead Co. v. 
 Rochester. 3 N. Y. 463 
 
 312, 313, 329\ 332' 
 
 V. Rochester. 3 N. Y. 464. 330' 
 V. Rochester, 3 N. Y. 466. 
 
 292'. 311^,326*5, sogs 
 
 Rockford v. Hildebrand, 61 111. 
 
 155 342' 
 
 Rockwood V. Wilson, 11 Cush. 
 
 221 439 
 
 Rodgers v. Burchard, 34 Tex. 441 230' 
 V. Parker, 9 Gray, 445... 1843 
 Rogers v. Allen, 1 Camp. 313, 
 
 notea 5003 
 
 V. Allen, 1 Camp. 313 .... 499"> 
 V. Cox, 96 Ind. 157, 49 Am. 
 
 Rep. 152 1826 
 
 V. Jones, 1 Wend. 237 .... 498* 
 V. Sinsheimer, 5U N. Y. 646 
 
 ..169, 171«, 205^ 217', 24P 
 V. Sinsheimer, 50 N. Y. 648 171^ 
 V. The St. Charles, 60 U. S. 
 19 How. 108, 15 L. ed. 
 
 563. 369' 
 
 Rohn V. Harris, 130 111. 525 480* 
 
 Rolke V. Chicago & N. W. R. Co. 
 
 26 Wis. 538 646* 
 
 RoUe V. Whyte, L. R. 3 Q. B. 286, 
 
 306.. 532* 
 
 Rome, W. & O. R. Co. v. Ontario 
 
 S. R. Co. 16 Hun. 445 224' 
 Ronayne v. Loranger, 66 Mich. 
 
 373, 10 West. Rep. 518 4773 
 V. Loranger, 66 Mich. 373, 
 
 10 West. Rep. 520.468', 476* 
 V. Loranger, 66 Mich. 373, 
 
 10 West. Rep. 523 763 
 
 Root V. Wad hams, 107 N. Y. 384, 
 
 9 Cent. Rep. 874 
 
 169*, 1713, 185 
 
 Roseburg v. Abraham, 8 Or. 509. 
 
 ....80^ 4713 
 
 Rosewell v. Prior, 2 Salk. 460. 1 
 
 Ld. Ravm. 713.. 44-, 45, 45* 
 V. Prior. 2" Salk. 459, 12 
 
 Mod. 635-639 443, 502 
 
 Ross V. Boston & W. R. Co. 6 
 
 Allen, 87 669* 
 
 V. Clinton, 46 Iowa, 606 .. 305<^ 
 V. Davenport, 66 Iowa, 548 128' 
 V. Fau.st, 54 Ind. 471..375^ 412* 
 V. Fedden, L. R. 7 Q. B. 
 
 661. - 273* 
 
 V. Mackeney, 46 N. J. Eq. 
 
 140 304' 
 
 V. Madison, 1 Ind. 281.... 338' 
 V. Thompson, 78 Ind. 90. . 
 
 176', 235', 323'
 
 Ixxx 
 
 TABLE OF CASES. 
 
 Rossell V. Cottom, 31 Pa. 525 G23^ 
 
 Roswell V. Leslie, 133 Mass. 589. 624' 
 Roulston V. Clark, 3 E. D. Smith, 
 
 366 23", 106' 
 
 Rounds V. Mansfield, 38 Me. 586. 600^ 
 
 v. Stetson, 45 Me. 596 600^ 
 
 Routh V. Driscoll, 20 Conn. 533.. 28P 
 Rowbotham v. Wilson, 8 El. & Bl. 
 
 123 181« 
 
 V. Wilson, 8 El. & Bl. 136. 438^ 
 z\ Wilson, 8 El. & Bl. 145. 183« 
 Rowe V. Granite Bridge Corp. 21 
 
 Pick. 344 
 
 ..3745, 3763, 4051^ 4355^ 4682 
 ^^ Portsmouth, 56 N. H. 291 326^ 
 V. St. Paul, M. & M. R. Co. 
 
 41 Minn. 384 298", 300' 
 
 V. Titus, 1 Allen (N. B.)326 
 
 .3773, 405', 416 
 
 Rowell V. Doffgett, 143 Mass. 483, 
 3 New Eng. Rep. 756. 
 1743 ^ 239^ 245^ 5 6^ 263^ 265* 
 «. Lowell, 7 Gray, 100.365, 367 
 «. Williams, 29 Iowa, 210. 113' 
 Rowland v. Gallatin, 75 Mo. 134. 337^^ 
 Ruck V. Williams, 3 Hurl. & N. 
 
 308 3265 
 
 Ruddiman «. A Scow Platform, 
 
 38 Fed. Rep. 158 567^ 
 
 Ruffner ®. Cincinnati, H. & D. R. 
 
 Co. 34 Ohio St. 96.... 648^ 
 
 Ruggles V. Fay, 31 Mich. 141 639^ 
 
 Rumford Fourth School Dist. v. 
 Wood, 13 Mass. 193, 
 
 198- 3412 
 
 Rumsey v. Nelson, 58 Vt. 590, 2 
 
 New Eng. Rep. 63.... 612^ 
 1). New York & N. E. R. 
 
 Co. 114 N. Y. 423.... 396' 
 Rundle v. Delaware & R. Canal 
 Co. 55 U. S. 14 How. 
 80, 14L. ed. 335..386', 387^ 
 Runyon v. Bordine, 14 N. J. L. 
 
 472.... 36^ 79- 
 
 V. Central R. Co. 25 N. J. 
 
 L. 556 3633 
 
 Rupard v. Chesapeake & O. R. 
 
 Co. (Ivy.) 7 L.R. A. 316 S^. 
 Russel V. Devon, 2 T. R. 667.338, 340 
 Russell v. Jersey Co. 56 U. S. 15 
 
 How. 426, 14 L. ed. 757 494* » 
 V. New York, 2 Denio, 461 6' 
 V. Reagan, 34 Mo. App. 242 
 
 6423, 6453 
 
 V. Scott, 9 Cow. 279... 428^ 545* 
 V. Shenton, 2 Gale & D. 573 
 
 582, 65 
 
 V. Toralinson, 2 Conn. 206 626 
 
 Rust V. Low, 6 Mass. 90 59P, 593^ 
 
 v. Low, 6 Mass. 94 589^ 
 
 Rutter V. Henry, 46 Ohio St. 272. 600' 
 Ruttles V. Covington (Ky.) 10 Ky. 
 
 L. Re^p. 706 90' 
 
 Ruiz V. Seeger, 35 Fed. Rep. 188 400' 
 
 Ryan v. Brown, 18 Mich. 196 405' 
 
 V. Curran, 64 Ind. 345 333^ 
 
 «. Gilmer, 2 Mont. 517 156"' 
 
 V. New York Cent. R. Co. 
 
 35 N. Y. 210 649 
 
 «. Wilson, 87 N. Y. 471.52', 72* 
 Rychlicki v. St. Louis, 98 Mo. 497, 
 
 4 L.R. A. 594. 290', 304% 326' 
 Rylands v. Fletcher, L. R. 3 H. 
 
 L. 330 .. 
 
 .-7\ 270, 271, 271«, 272, 273 
 
 S. 
 
 Sackrider v. Beers, 10 Johns. 241 287- 
 Sagrill V. Milward, 21 Hen. VI. 
 
 p. 33, pi. 20 591« 
 
 St. Anthony Falls Water-Power 
 
 Co. V. Minneapolis, 41 
 
 Minn. 270. ..410', 4203, 4535 
 St. Clair Co. v. Lovingston. 90 
 
 U. S. 23 Wall. 46, 23 
 
 L. ed. 59 
 
 ..396'-. 397', 399'», 401 
 
 ®. Lovingston, 90 U. S. 23 
 
 Walt; 46, 63, 23 L. ed. 
 
 59.62 3932 
 
 St. Helen's Smelting Co. v. Tip- 
 ping, 11 Jur. 785 259^ 
 
 St. John V. New York, 3 Bosw. 
 
 483.. 102' 
 
 St. Joseph & D. C. R. Co. v. 
 
 Chase, 11 Kan. 47 664' 
 
 St. Louis V. Kaime, 2 Mo. App. 
 
 66. 52' 
 
 V. Myers, 113 U. S. 566, 28 
 
 L. ed. 1131. 3893 
 
 V. Weber, 44 Mo. 547 152^ 
 
 St. Louis & St. P. Packet Co. v. 
 
 Keokuk & H. Bridge 
 
 Co. 31 Fed. Rep. 755. 
 
 ..463% 467' 2 
 
 St. Louis Bridge Co. v. People, 
 
 128 In. 422, 15 West. 
 
 Rep. 155 3242 
 
 St. Louis, I. M. & S. R. Co. v. 
 
 Hecht, 38 Ark. 357... 6663 
 v. Ramsey (Ark.) 8 L. R. 
 
 A. 559. 378% 3873* 
 
 St. Louis, J. & C. R. Co. V. 
 
 Mitchell, 47 111. 165 ... 89« 
 St. Louis Public Schools v. Ris- 
 
 ley, 40 Mo. 356 396' 
 
 v. Risley, 77 U. S. 10 Wall. 
 
 91, 19L. ed. 850 
 
 389*^397^401'
 
 TABLE OF CASES. 
 
 Ixxxi 
 
 St. Louis, V. & T. H. R. Co. v. 
 
 Bell, 81 111. 76 233 
 
 St. Paul V. 8ei(z, 8 .Minn. 297 114' 
 
 St. Paul & P. R. Co. V. Schur- 
 
 meier. 74 U. S. 7 Wall. 
 
 272, 19 L. ed. 74 
 
 359', 380\ 388«, 5593 4 6 
 
 St. Paul Water Co. v. Ware, 83 U. 
 
 S. 16 Wall. 566, 21 L. 
 
 ed. 485._ .3431, 348= 
 
 V. Ware, 83 U. S. 16 Wall. 
 
 576. 21L. ed.4 88 39« 
 
 Sale®. Piatt, 19 Pick. 191 383^ 
 
 Salem Capital Flour Mills Co. v. 
 
 Stayton W. D. & C. 
 
 Co. 33 Fed. Rep. 146. 172' 
 Salisbury «. Andrews, 19Pick.250 242^ 
 V. Andrews, 128 Mass. 336 
 
 181', 253 
 
 V. Hercbenroder, 106 Mass. 
 
 458 - 272 
 
 Salmon v. Bensley. Ryan & M. 189 66 
 V. Delaware, L. & W. R. 
 
 Co. 38 N. J. L. 5, 20 
 
 Am. Rep. 356. ...241', 664' 
 V. Delaware, L. & W.R.Co. 
 
 38 N. J. L. 5, 39 N. J. 
 
 L. 299 660= 
 
 Saltonstall v. Banker, 8 Gray, 195, 
 
 197 45. 493, 51-^* 
 
 Sampson v. Hoddinott, 1 C. B. N. 
 
 S. 590 443« 
 
 t). Smitb, 8 Sim. 272 79' 
 
 Samva v. McClosky, 2 Ohio St. 
 
 536 -lOP, 1035 
 
 Sanborn v. Rice, 129 Mass. 387.. 211 
 Sanderlin v. Baxter, 76 Va. 299.. 
 
 166', 17r 
 
 V. Baxter, 76 Va. 305..176«, 570' 
 
 Sanders v. Martin, 2 Lea, 213 227 
 
 V. Reister, 1 Dak. 151 110' 
 
 V. Teape, 51 L. T. N. S. 263 
 
 ..6'J7-, 615 
 
 Sanderson v. Pennsylvania Coal 
 
 Co. 86 Pa. 401,27 Am. 
 
 Rep. 711 154, 288' 
 
 San Francisco, A. & S. R. Co. v. 
 
 Caldwell, 31 Cal. 385. 564' 
 Sankey v. St. Mary's Female 
 
 Academy, 8 Mont. 265 180' 
 Sapphire, The, 78 U. S. 11 Wall. 
 
 164, 20 L. ed. 127.... 369' 
 Sarah Jane, The, 1 Low. 203 ... 37P 
 Sarch v. Blackburn, 4 Car. & P. 
 
 296 616- 
 
 V. Blackburn, 4 Car. & P. 
 
 297 ...17'-, 619^ 63P 
 
 Sargent v. Ballard, 9 Pick. 251- 
 
 255 427"\ 582' 
 
 V. Hubbard, 102 Mass. 380 578^ 
 
 Sargent®. Ohio«&M.R.Co. 1 Han- 
 dy (Ohio) 52 73' 
 
 Sarpy v. Hymel, 40 La. Ann. 425 580' 
 Satterfield v. Rowan, 83 Ga. 187. 
 
 289', 294 
 
 Saulet V. Shepherd, 71 U. S. 4 
 
 Wall. 502, 18 L. ed. 442 
 
 399\ 400' 
 
 Saunders v. Newman, 1 Barn. & 
 
 Aid. 258 545< 
 
 Saussy v. South Fla. R. Co. 22 
 
 Fla. 327 644^ 660* 
 
 Savage®. Mason. 3Cush. 504.204S 224^ 
 Savannah, A. & G. R. Co. ®. 
 
 Shields, 33 Ga. 601. .. 79' 
 Savannah & T. R. Co. v. Savan- 
 nah, 45 Ga. 602. 248= 
 
 Savannah, F. <fe W. R. Co. v. 
 
 Geisrer, 21 Fla. 669... 503' 
 
 V. Lawton, 75 Ga. 192 461^ 
 
 Sawyer v. Corse. 17 Gratt. 230.. . 100' 
 V. Corse, 17 Gratt. 241.... 342' 
 V. Davis, 136 Mass. 239, 243 13' 
 V. Hannibal & St. J. R. Co. 
 
 37 Mo. 240. 155' 
 
 v. Northfield, 7 Cush. 490, 
 
 494 339» 
 
 Saxby v. Manchester, S. & L. R. 
 
 Co. 38 L. J. N. S. C. 
 
 P. 153... 157' 
 
 Saxton V. Zett, 44 N. Y. 432 333* 
 
 Schaefer v. Marthaler, 34 Minn. 
 
 487 257' 
 
 Schaefler v. Sandusky, 33 Ohio 
 
 St. 246 129'>« 
 
 Schall V. Nusbaum, 56 Md. 512.. 
 
 SO', 476' 
 
 Schell ®. Second Nat. Bank, 14 
 
 Minn. 43 9^ 
 
 Schermerhorn v. New York, 3 
 
 Edw. Ch. 119, 6 N. Y. 
 
 Ch. L. ed. 594 564' 
 
 Schile V. Brokhahus, 80 N.Y. 614 
 
 210^ 233* 
 
 Schlag ®. Jones, 131 Pa. 62 256* 
 
 Schlichter v. Phillipy, 67 Ind. 201 300- 
 Schmidt v. Bauer, 80 Cal. 565, 5 
 
 L. R. A. 580. and note 25^ 
 Schneider v. Missouri P. R. Co. 
 
 29 Mo. App. 68 300- « 
 
 Schneir v. Chicago, R. I. & P. R. 
 
 Co. 40 Iowa, 337 147' 
 
 Schoenfeld v. Milwaukee City R. 
 
 Co. 74 Wis. 433 ..363\ 364* 
 School Dist. No. 1 v. Neil, 36 
 
 Kan. 617 75« 
 
 Schultz V. Cliirago & N. W. R. 
 
 Co. 67 Wis. 616. 137» 
 
 ®. Pacific R. Co. 36 Mo. 
 
 32 136*
 
 Ixxxii 
 
 TABLE OF CASES. 
 
 Schuylkill Nav. Co. v. McDon- 
 
 ouffh, 33 Pa. 73 433^ 
 
 Schwartz v. Gilmore, 45 111. 454. 28' 
 Schwoerer v. Boylston IMarket 
 
 Asso. 99 Mass. 285 253 
 
 Scioto Valley R. Co. v. Lawrence, 
 
 38 Ohio St. 41 82' 
 
 Scott V. Chicago, 1 Biss. 510 
 
 4793, 530', 531' 
 
 V. Grover, 56 Vt. 499 595^ 
 
 V. Hall, 16 Me. 326 645'^ 
 
 V. London & St. K. Docks 
 
 Co. 3 Hurl. &C. 596-. 147^ 
 V. London Dock Co. 34 L. 
 
 J. N. S. Exch. 17, 220 612'' 
 V. Manchester, 2 Hurl. & 
 
 X. 204, 210 3383 
 
 V. Shepherd, 2 W. Bl. 892. 
 
 1442, 6573 
 
 V. Wilson, 3 N. H. 321.405', 415 
 V. Wilmington & R. R. Co. 
 
 4 Jones, L. 432 147' 
 
 Scratton v. Brown, 4 Barn. & C. 
 
 485. 3933, 401' 
 
 Screven v. Gregorie, 8 Rich. L. 
 
 163 168« 
 
 Scribner v. Kelley, 38 Barb. 14.. 
 
 587', 629' 
 
 Scriver v. Smith, 100 N. Y. 471, 
 1 Cent. Rep. 763, 767. 
 
 355'^ ^ 357' ^ 432^ 460^ 
 
 Seal «. Donnelly, 60 Miss. 662.. 
 
 -.4828, 485^ 
 
 Seaman v. Lee, 10 Hun, 607 287* 
 
 V. New York, 80 N. Y. 239 566=* 
 Searing v. Saratoga Springs. 39 
 
 Hun, 307 288^ 
 
 Searles v. :^Lanhattan E. R. Co. 
 
 101 N. Y. 666, 2 Cent. 
 Rep. 442.... 659-2 
 
 Seele v. Deerine, 79 Me. 343, 4 
 
 New Eng. Rep. 557 . 351'^ 
 V. Deering, 79 Me. 347, 4 
 New Eng. Rep. 550 
 
 ....336', 3413 
 
 Seeley v. Bishop, 19 Conn. 134.. 168« 
 V. New York Cent. R. Co. 
 
 102 N. Y. 719, 3 Cent. 
 Rep. 743 652', 654^^ 
 
 «. Peters, 10 111. 130 598^ 
 
 B.Peters, 10 111.142 592 
 
 Seihert v. Levan, 8 Pa. 383 5748 
 
 Seifert v. Brooklyn, 101 N. Y. 
 136, 2 Cent. Rep. 135, 
 136, 137... 2903, 292' ^ 
 2933, 304\ 31 1^ 317, 
 325', 3263, 327»^ 331' ^ 33323 
 Selby V. Robinson, 2 T. R. 758.. 189* 
 Seldea v. Delaware & H. Canal 
 
 Co. 24 Barb. 362 14 
 
 Selden v. Delaware & H. Canal 
 Co. 29 N. Y. 634, 642. 
 
 ..110', 2703 
 
 Selleck v. Langdon, 55 Hun, 19.. 655'» 
 Sellers v. Union Lumbering Co. 
 
 89 Wis. 525. 405'. 412' 
 
 Selma v. Perkins, 68 Ala. 145... 342' 
 
 Selman v. Wolfe. 27 Tex. 68 377* 
 
 Seneca Nation v. Knight, 23 N. Y. 
 
 498 397^ 
 
 Senna v. Perkins, 68 Ala. 145... 343'^ 
 Sensenig v. Parry, 113 Pa. 115, 4 
 
 Cent. Rep. 48 2145' 
 
 Sentner v. Tees, 132 Pa. 216 302'2 
 
 Seska v. Chicago, M. & St. L. R. 
 
 Co. 77 Iowa, 137 648+ 
 
 Sessengut v. Posey, 67 Ind. 408. 104 
 Severy v. Central Pac. R. Co. 51 
 
 Cal. 194 Qd\ 94' 
 
 T. Nickcrson. 120 Mass. 306 
 
 233, 568* 
 
 Sewall & D. Cordage Co. v. Bos- 
 ton Water Power Co. 
 147 Mass. 61, 6 New 
 
 Eng. Rep. 325... 380^ 
 
 Sexton V. Zett, 44 N. Y. 430 .... 108= 
 Seybolt v. New York. L. E. & W. 
 
 R. Co. 95 N. Y. 562.. 155^ 
 Seymour v. Cummins, 119 Ind. 
 
 148, 5L. R. A. 126... 322 
 V. Lewis, 13 N. J. Eq. 439, 
 78 Am. Dec. 108, 120, 
 
 and 7iote. 
 
 166', 168^ 186^ 2412 3 
 
 V. Lewis, 13 N. J. Eq. 444 
 
 1745, 175' 
 
 V. Maddox, 16 Q. B. 326.. 150* 
 Shafer v. Wilson, 44 Md. 268.38', 198- 
 Sharp V. Cheatham, 88 Mo. 448, 5 
 
 West. Rep. 373 
 
 223, 2246, 230^ 
 
 V. Grav, 9 Bing. 457 363' 
 
 «. Hoffman, 79 Cal. 404... 449^ 
 V. Powell, L. R. 7 C. P. 253 139^ 
 T. Whiteside, 19 Fed. Rep. 
 
 156 152' 
 
 Shartle v. Minneapolis, 17 Minn. 
 
 308 342', 343- 
 
 Shattuck D. Rand, 142 Mass. 83,2 
 
 New Eng. Rep. 378 .. 136' 
 Shaubut V. St. PaulXt S. C. R. Co. 
 
 21 Minn. 502 75*, 475* 
 
 Shaw V. Craft. 37 Fed. Rep. 317 
 
 614', 623 
 
 V. Crawford, 10 Johns. 286, 
 
 237 70*, 403'. 415, 549* 
 
 V. Oswego Iron Co. 10 Or. 
 
 371.. 412 
 
 Shed ®. Hawthorne, 3 Neb. 179 
 
 126*, 475*
 
 TABLE OF CASES. 
 
 Ixxxiii 
 
 Shed V. Hawthorne. 3 Neb. 185. TO^ 
 Sheen v. Stothart, 2!) La. Ann. 630 184^ 
 Sheets v. Atherton (Vt.) 15) Atl. 
 
 He p. 926.-..535^ 536' "> ^ * ^ 
 Shelbyville It. Co. v. Lewark, 4 
 
 Ind. 471 637' 
 
 V. Louisville, C. & L. R. 
 
 Co. 82 Ky. 541 89* 
 
 Sheldon v. Rockwell, 9 Wis. 166 
 
 427^ 476-' 
 
 V. Sherman, 42 N. Y. 484. 
 
 272', 440' 
 
 Shenandoah v. Erdnian (Pa.) 11 
 
 Cent. Rep. 440 130« 
 
 Shepard v. People, 40 31ich. 487. 648- 
 Shepherd v. Chelsea, 4 Allen, 113 
 
 365^ 366, 656' 
 
 Sherfey v. Bartley, 4 Sneed, 58 . . 
 
 617', 619^ 6278, 631^ 
 
 Sheridan v. Bean, 8 Met. 284.... 622^ 
 Sherlock v. Louisville, N. A. & 
 
 C. R. Co. 115 Ind. 22, 
 
 14 West. Rep. 843... 429^* 
 Sherman v. Braman, 13 Met. 407 603^ 
 V. Fall River Iron Works 
 
 Co. 5 Allen, 213 80^ 
 
 Sherred v. Cisco, 4 Sandf. 480... 
 
 .2095, 2132^ 216^ 
 
 V. Cisco, 4 Sandf. 485 217 
 
 Shewel i). Fell, 3 Yeates, 21 443^ 
 
 Shields v. Arndt, 4 N. J. Eq. 434 580^ 
 Shindelbeck v. Moon, 32 Ohio St. 
 
 264 52' 
 
 Shinn v. Cotton, 52 Ark. 90 481' 
 
 Shipley v. Caples, 17 Md. 179... 
 
 ....126^ 475'' 
 
 V. Fifty Asso. 101 Mass. 251 
 
 ..105', 125^ 132', 153', 271' 
 V. Fifty Asso. 106 Mass. 
 
 194. .9^ 27^ 1073 
 
 Shively v. Cedar Rapids, I. F. & 
 
 N. R. Co. 74 Iowa, 169 14' 
 Shoemaker®. Shoemaker, 11 Abb. 
 
 N C. 80- 235® 
 
 Shook V. Coiioes, 108N." y" 648', 
 
 11 Cent. Rep. 301 130^ 
 
 Short V. Devine, 146 Mass. 119, 
 
 5 New Eng. Rep. 592. 245- 
 V. Taylor, 2 Eq. Cas. Abr. 
 
 522 183« 
 
 Shrewsbury v. Brown, 25 Vt. 197 238' 
 V. Smith, 12 Cush. 177 
 
 272', 440' 
 
 Shrieve v. Stokes, 8 B. Mon. 453 
 
 198'^ 199', 233^ 
 
 Shroder v. Brenneman, 23 Pa. 
 
 348 238'^ 
 
 Shrunk v. Schuylkill Nav. Co. 14 
 
 Serg. & R. 71-74 
 
 380% 386', 514', 531'' 
 
 Shupe V. Collender, 56 Conn. 489, 
 
 1 L. R. A. 339, note .. 634» 
 Shury v. Piggott, 3 Bulst. 339... 
 
 175>, 420' 
 
 Siemers v. Essen, 54 Cal. 418.-.- 612' 
 Sigler V. State, 7 Ba.xt. 493.. 377', 404» 
 Sigourney v. Munn, 7 Conn. 324. 242' 
 Si'kes V. Sheldon, 58 Iowa, 744 .. 139* 
 Silsby Mfg. Co. v. Slate, 104 N. 
 
 Y. 562. 6 Cent. Rep. 
 
 812.... 459» 
 
 Silvarer v. Hansen, 77 Cal. 579.. 595* 
 Silvers v. Nerdlinger, 30 Ind. 53 
 
 -.53', 114', 247* 
 
 Silver Spring B. & D. Co. v. 
 
 Wanskuck Co. 13 R. 
 
 L 611 .- 456* 
 
 Simmer v. St. Paul, 23 Minn. ^08 326* 
 Simmons v. Cloonan, 81 N. Y. 
 
 557 166', 1716^ 
 
 V. Cornell, 1 R. I. 519 .... 236+ 
 V. Elliott, Montreal L. Rep. 
 
 5 Super. Ct. 182 148* 
 
 V. New Bedford, V. & N. 
 
 Steamboat Co. 97 Mass. 
 
 361 488* 
 
 Simons v. Morehouse, 88 Ind. 391 182* 
 Simonton v. Loring, 68 Me. 164. 256* 
 
 Sims I'. Davis, Cheves, L. 1 236* 
 
 Simson v. London General Omni- 
 bus Co. L. R. 8 C. P. 
 
 390 620' » 
 
 Singleton v. Phoenix Ins. Co. 57 
 
 Hun, 590 656» 
 
 Sioux City & P. R. Co. v. Stout, 
 
 84 U. S. 17 Wall. 657, 
 
 21 L. ed. 745 .29', 30 
 
 Sisk V. Crump, 112 Ind. 504, 12 
 
 West. Rep. 134, 137.. 
 
 123', 597, 599' 
 
 Sjogren v. Hall, 53 Mich . 274 ... . Ui 
 Skinner v. Chapman, Moody & 
 
 M. 59, n 497* 
 
 V. Hellrick, 73 N. C. 53... 498* 
 V. London, B. & S. C. R. 
 
 Co. 5 Exch. 787 155* 
 
 Skull V. Glenister, 16 C. B. N. S. 
 
 105... 2.88* 
 
 Slack v. Lawrence Twp. (N. J.) 19 
 
 Atl. Rep. 663 306* 
 
 Slater «. Fox, 5 Hun, 544 405' 
 
 V. Mersereau, 64 N. Y. 138 660* 
 Sleight V. Kingston, 11 Hun. 594. 
 
 292-**, 311*, 320** 
 
 Slimmer v. Merry, 23 Iowa, 90.. 488* 
 Sloan V. Biemiller, 34 Ohio St. 492 512' 
 Slosson V. Burlington, C. R. & N. 
 
 R. Co. 51 Iowa, 294-. 666" 
 Sloughton V. Porter, 13 Allen, 
 
 191 114*
 
 Ixxxiv 
 
 TABLE OF CASES. 
 
 Small V. Chicago, R. I. & P. R. 
 
 Co. 55 Iowa, 583 654i - 
 
 V. Danville, 51 Me. 359.335', 352'^ 
 Smart v. Morton, 5 El. & Bl. 30. 38' 
 Smethurst v. Barton Square Inde- 
 pendent Congregation- 
 al Church, 148''Mass. 
 
 261, 2 L. R. A. 695... 
 
 106-, 107', 125 
 
 Smiles v. Hastings, 24 Barb. 44.. 580^ 
 Smith V. Adams, 6 Paige, 435, 3 
 
 N. Y. Ch. L. ed. 1051 3622 
 V. Agawam Canal Co. 2 
 
 Alien, 355 546' 
 
 e. Atlanta, 75 Ga. 110 
 
 293^ 326S 3273 
 
 V. Boston, 7 Cush. 257 474' 
 
 V. Causey, 22 Ala. 568 
 
 586^ 607^ 626^ 
 
 «. Dedham, 8 Cush. 522... 347^ 
 
 «. Dunton, 42 Iowa, 48 230' 
 
 «. Fletcher, L. R. 7 Exch. 
 
 305 27P 
 
 1). Fletcher, L. R. 9 Exch. 
 
 64 438' 
 
 1}. Frampton, 2 Salk. 644.. 644' 
 «. Gates, 21 Pick. 55.-6005, 603-' 
 V. Great Eastern R. Co. L. 
 
 R. 3 C. P. 4, 36 L. J. 
 
 N. S. C. P. 33, 15 W. 
 
 R. 81, 15 L. T. K S. 
 
 246 631« 
 
 V. Great Eastern R. Co. L. 
 
 R. 3C. P. 10 146« 
 
 «. Griffin (Colo.) 33 Pac. 
 
 905 -. 166* 
 
 v. Ilarkins, 3 Ired. Eq. 613, 
 
 44 Am. Dec. 83 480'o 
 
 1). Huntington, 3 N. H. 76. 602s 
 V. Jaques, 6 Conn. 530-594«, 623^ 
 
 v. Kemp, 3 Salk. 637 498" '^ 
 
 V. Keurick, 7 C. B. 515 388* 
 
 «. Langewald, 140 Mass. 
 
 305, 1 New Eng. Rep. 
 
 449 ....258-'^ 580'* 
 
 V. Levinus, 8 N. Y. 473... 
 
 378*, 495^5332 
 
 «. London & St. K. Docks 
 
 Co. L. R. 3 C. P. 326. 
 
 20»% 567^2 
 
 v. London & S. W. R. Co. 
 
 L. R. 5 C. P. 98-.G4P, 664' 
 V. London & S. W. R. Co. 
 
 L. R. 5 C. P. 98, L. R. 
 
 6C.P. 14 654' 
 
 «. McConathy, 11 Mo. 517. 
 
 ....80S 391*, 47P 
 
 «. Maryland, 59 U. S. 18 
 
 How. 71, 15 L. ed. 369 
 
 371S 378', 379^9, 494'% 495^ 
 
 Smith V. Maryland, 59 U. S. 18 
 
 How. 74, 15 L. ed. 370 
 
 493', 4943 
 
 V. Matteson, 41 Hun, 216. 608* 
 V. Miller, 5 Mason, 191.... 513' 
 V. Miller, 11 Gray, 148... 582' 
 9). Montgomery, 52 Me. 178 594* 
 V. Musgrove, 32 Mo. App. 
 
 241 426* 
 
 V. New Y'ork, 66 N.Y. 295, 
 
 23 Am. Rep. 53. ..317, 330* 
 V. New York, 66 N.Y. 295, 
 
 4 Hun, 627 331* 
 
 V. Pelah, 2 Strange, 1264.. 
 
 617', 619', 620«, 63r 
 
 V. People, 47 N. Y. 339... 88' 
 
 V. Race, 76 111. 490 623* 
 
 V. Rochester, 92 N. Y. 463.4563 ^ 
 V. Rochester. 93 N. Y''. 463, 
 
 479, 480. 503' 
 
 V. Rochester, 93 N. Y. 463, 
 
 481 530- 
 
 v. Rochester, 93 N. Y. 473 
 
 5442, 54S'' 
 
 «. Russ, 17 Wis. 328 363^ 
 
 V. St. Louis Public Schools, 
 
 30 Mo. 290. 393S 396' 
 
 V. St. Paul C. R. Co. 33 
 
 Minn. 1 155" 
 
 V. Simmons, 103 Pa. 32.. 
 
 1018, i24() 
 
 V. Wiggin, 52 N. H. 112.. 577^ 
 V. Wildes, 143 Mass. 556, 3 
 
 NewEng. Rep. 744... 137^ 
 Smoot V. Wetumpka, 24 Ala. 113 343' 
 Smyles v. Hastings, 33 N. Y. 217 159' 
 Smyth V. Tankersley, 20 Ala. 212 20P 
 Snape v. Dobbs, 1 Bing. 202, 8 
 
 Moore. 33 501' 
 
 Snell V. Levitt, 39 Hun, 337 580* 
 
 V. Levitt, 110 N. Y. 595, 1 
 
 L. R. A. 414. 
 
 5702, 57P, 573', 580^ 
 
 Snow V. Brunswick, 71 Me. 
 
 582.... 335" 
 
 «. Carruth, 1 Sprague, 324 369 
 V. Housatonic R. Co. 8 Al- 
 len, 441 253'' 
 
 V. Parsons, 38 Vt. 459.... 443'^ 
 V. Provincetown, 130 Mass. 
 
 580- 31 
 
 Snowden «. Wilas, 19 Ind. 10.-1822 ^ 
 
 V. Wilas, 19 Ind. 14 182' 
 
 Snyder v. Cabell, 29 W. Va. 48.. 
 
 115«, 475* 
 
 V. Pittsburgh, C. & St. L. 
 
 R. Co. 11 W. Va. 17. 
 
 664', 665- «, 6663 
 
 Snyder's App. (Pa.) 6 Cent. Rep. 
 
 370. 338^ 263*
 
 TABLE OF CASES. 
 
 Ixxxv 
 
 Solomon v. Grosbeck, 65 Mich. 
 
 540, 9 West. Rep. 107. 518' 
 V. Vintners Co. 4 Plurl. & 
 
 N. 585, 28 L. J. N. S. 
 
 Exch. 370 192 
 
 Soltau V. DeHeld, 2 Sim. N. S. 
 
 133 -.79^ 4755 
 
 Somerset v. Fop;weli, 5 Barn. & 
 
 C. 875, 1 Dowl. & Ry. 
 
 347 -- 500* 
 
 Someiville v. Wimbish, 7 Gratt. 
 
 205.. - 480^ 
 
 South & North- Ala. R. Co. v. 
 
 McLendon, 63 Ala. 266 252^ 
 Southard v. Morris Canal & Bkg. 
 
 Co. 1 N. J. Eq. 518--- 427^ 
 South Bend v. Hardy, 98 Ind. 586 128*= 
 South Branch R. Co. v. Parker, 
 
 41 N J. Eq. 489, 4 
 
 Cent. Rep. 63 235' 
 
 South Carolina v. Georgia, 93 U. 
 
 S. 4, 14, 23 L. ed. 782, 
 
 785... - 80^ 47P 
 
 South Carolina R. Co. v. Moore, 
 
 28 Ga. 398 ...lb\ 4753 
 
 V. Steiner, 44 Ga. 546 90' 
 
 South Carolina Steamboat Co. v. 
 
 South Carolina R. Co. 
 
 30 S. C. 539, 4 L. R. A. 
 
 209 4693, 4714 
 
 Southcote V. Stanley, 1 Hurl. & N. 
 
 247 .25\ 1503 
 
 Southern Pac. R. Co. v. Reed, 41 
 
 Cal. 256.- 90' 
 
 Southern R. Co. v. Kendrick, 40 
 
 Miss. 374. 128'^ 
 
 Southwestern R. Co. «. Southern & 
 
 A. Teleg. Co. 46 Ga. 
 
 43 978 
 
 South West Va. Imp. Co. v. An- 
 drew (Va.) 9 S. E. Rep. 
 
 1015. 1452 
 
 V. Smith (Va.)7S. E. Rep. 
 
 365 5' 
 
 South Yuba Water & Min. Co. v. 
 
 Rosa, 80 Cal. 333 445!^ 
 
 Sowerby «. Coleman, L. R. 2 
 
 E.\ch. 99 1895 
 
 Sowers v. Sbiff, 15 La. Ann. 275 300^ 
 Spackraan v. Steidel, 88 Pa. 453. 161« 
 Spangler v. San Francisco, 84 
 
 Cal. 12 333' 
 
 Sparhawk v. Bullard, 1 Neb. 95. 380' 
 V. Union Passenger R. Co. 
 
 54 Pa. 401 79' 
 
 Spaulding t>. Chicago & N. W. 
 
 R. Co. 30 Wis. 110... 
 
 6413, 6484 
 
 V. Winslow, 74 Me. 533... 108'^ 
 Spear v. Robinson, 29 Me. 531 .. 540^ 
 
 Spelman v. Portage, 41 Wis. 144 
 
 305«. 806» 
 
 Spencer v. London & B. R. Co. 8 
 
 Sim. 193.-- 79' 
 
 Spencer's Case, 1 Smith, Lead. 
 
 Cas. (7th Am. ed.) p, 
 
 219 220 
 
 Spencer's Case, 5 Coke, *16, 29, 1 
 
 Smith, Lead. Cas. *137 
 
 220\ 222* 
 
 Spencer's Case, 1 Smith, Lead. 
 
 Cas. *137 - 2212 4 
 
 Spencer's Case, 1 Smith, Lead. 
 
 Cas. (6tli Am. ed.) 167 229 
 Sphung V. Mooie, 120 Ind. 352.. 395' 
 Spigener v. Cooner, 8 Ricii. L. 301 397' 
 Spooner v. Delaware, L. & W. R. 
 
 Co. 115N. Y. 22 53 
 
 «. McConnell, 1 McLean, 
 
 337,350 - -.79', 376« 
 
 Spoor V. Green, L. R. 9 Exch. 99. 
 
 8 Moak. Eng. Rep. 540 242^ 
 Spray v. Ammerman, 66 111. 309. 
 
 ...6063, 626', 628=- 
 
 Spring V. Russell, 7 Me. 273. 290 
 
 3773, 
 
 404«, 415', 416, 5303, 5315 
 Springer v. Bartle, 46 Iowa, 688. 230' 
 Springfield v. Connecticut R. R. 
 
 Co. 4 Cush. 63 89' 
 
 V. Harris, 4 Allen, 494 
 
 .--.443«, 547'' 
 
 V. LeClaire, 49 111. 476-114', 342' 
 Springstead v. Lawson, 23 How. 
 
 Pr. 302 635-' 
 
 Stace & Worth's Case, L. R. 4 
 
 Ch. 682.... 183-« 
 
 Stackpole v. Healy, 16 Mass. 33. 265'« 
 Stafford v. Ingersol, 3 Hill, 38... 
 
 591', 5925 
 
 V. Rubens, 115 111. 196, 1 
 
 West. Rep. 640 137' 
 
 Stainton v. ^letropolitan Board of 
 
 Works. 23 Beav. 225, 
 
 26 L. J. N. S. Ch. 300 453' 
 Stallard v. Cashing, 76 Cal. 472. 180' 
 Stanchfield ??. Xewtim, 142 Mass. 
 
 110, 2 New Eng. Rep. 
 
 526 
 
 288', UV, 3495, 358', 460* 
 Standard Bank v. Stokes, L. R. 9 
 
 Ch. Div. 68 213 
 
 Standi.sh v. Lawrence, 111 Mass. 
 
 Ill .- 2045, 224'« 
 
 Stanley v. Davenport, 54 Iowa, 
 
 463 93*, 251« 
 
 V. Gaylord, 1 Cush. 536, 
 
 551 269' 
 
 Stansell v. Jollard, 1 Selwyn, N. 
 
 P. 435 192
 
 Ixxxvi 
 
 TABLE OF CASES. 
 
 Stansell v. Jollard, 1 Selwyn, N. 
 
 P. (11th ed.) 457 
 
 Stapenhorst v. American Mfg. Co. 
 
 15 Abb. Pr. N. S. 355 
 
 193' 
 
 .256* 
 
 90> 
 
 541 « 
 
 288> 
 541« 
 3393 
 
 443^ 
 
 Staple «. Spring, 10 Mass. 72, 74. 
 
 ..44', 49^ 51-. 522. 542 _ 4792 
 Starr v. Camden & A. R. Co. 24 
 
 N. J. L. 592 
 
 State ®. Adams, 78 Me. 486, 3 
 New Eng. Rep. 243 .. 
 V. American Forcite Pow- 
 der Mfg. Co. 50 N. .J. 
 L. 75, 9 Cent. Rep. 495 540^ 
 V. Atkinson, 24 Vt. 448... 70^ 
 V. Bell, 5 Port. (Ala.) 379. 40(3' 
 V. Bell Teleph. Co. 36 Ohio 
 
 St. 296 97' 
 
 V. Bennett, 79 Me. 55, 3 
 
 New Eng. Rep. 616 .. 541« 
 
 «. Blount, 85 Mo. 543 535^ 
 
 «. Boston, C. & M. R. Co. 
 
 25Vt. 433 .- 873 
 
 «. Bruner, 111 Ind. 98, 9 
 
 West. Rep. 602 639^ 
 
 V. Buckman, 8 N. H. 203, 
 
 29 Am. Dec. 646 
 
 v. Buidick, 15 R. I. 239, 1 
 
 New Eng. Rep. 870 . . 
 
 V Burlington, 36 Vt. 521, 
 
 524. 
 
 •p. Cawood, 2 Stew. (Ala.) 
 
 360 
 
 v. Chicago, M. & St. P. R. 
 Co. 77 Iowa, 442, 4 L. 
 
 R. A. 298 .726, 247^ 
 
 •0. Craig. 80 Me. 85, 6 New 
 
 Eng. Rep. 160 541^ 
 
 V. Donohue, 49 N. J. L. 
 548, 8 Cent. Rep. 621. 
 
 591^ 6O53, 614, 626^ 
 
 v. Flannagan. 67 Ind. 140. 648' 
 «. Franklin Falls Co. 49 N. 
 
 H. 240 
 
 531\ 532*, 549^ 555» 
 
 V. Franklin Falls Co. 49 N. 
 
 II. 250 .- 512' 
 
 V. Gilmanton, 9 N. H. 461 512' 
 V. Gilmanton, 14 N. H. 467, 
 
 479. 
 
 D. Glen, 7 Jones, L. 321... 
 
 v. Godwinsville & P. M. 
 
 R. Co. 49 N. J. L. 266, 
 
 9 Cent. Rep. 128 70' 
 
 V. Gritfin, 89 Mo. 49, 4 
 
 West. Rep. 639 541^ 
 
 V. Hancock Co. Comrs. 11 
 
 Ohio St. 190 3393 
 
 V. Hunter, 106 N. C. 796, 8 
 
 L. R. A. 529 248' 
 
 405' 
 
 499*5 
 
 State V. Illinois Cent. R. Co. 33 
 
 Fed. Rep. 730 563' » 
 
 V. Jersey City, 25 N. J. L. 
 
 525 379' 
 
 V. Lamb, 8 Ired. L. 229... 596^ 
 V. Luce (Del.) 6 Cent. Rep. 
 
 862 293' 
 
 V. McDermott, 49 N. J. L. 
 163, 4 Cent. Rep. 559 
 
 6068, 609^ 
 
 V. Manchester & L. R. Co. 
 
 52N. H. 528 23^ 
 
 V. Merritt, 35 Conn. 314 .. W 
 . V. Mohley, 1 McMull. L 44 70^ 
 V. Moore, :-ll Conn. 479 ... 17' 
 V. Morns & E. R. Co. 25 N. 
 
 J. L. 437 35' 2 
 
 V. Nebraska Teleph. Co. 17 
 
 Neb. 126 97' 
 
 V. Newark, 37 N. J. L. 415 69'^ 
 V. New Brunswick Street 
 
 Cumrs. 42 N. J. L. 510 69^ 
 V. New Brunswick Street 
 
 Comrs. 44 N. J. L. 116 69'^ 
 V. Otoe County Comrs. 6 
 
 Neb. 132 481' 
 
 V. Portland, 74 Me. 268, 43 
 
 Am. Rep. 586 327^ 
 
 «. Portland, 74 Me. 271... 70' 
 V. Pumroy, 73 Wis. 664... 71'* 
 ®. Rankin, 3 S. C. 438.... 656^ 
 V. Rives, 5 Ired. L. 307... 485^ 
 V. Roberts, 59 N. H. 256, 
 
 47 Am. Rep. 199 495* 
 
 V. Shannon, 36 Ohio St. 423 506 
 V. Skolfield, 63 Me. 266... 
 
 531'* ' 549^ 
 
 «. Smitli,' h'lYt. '346 .' 531 ' 
 
 V. Snover, 42 N. J. L. 341 
 
 .534,5343 
 
 V. Snover, 42 N. J. L. 345 533^ 
 «. Society for Establishing 
 Useful Manufactures, 
 
 42 N. J. L. 504 121' 
 
 V. South Carolina R. Co. 
 
 28 S. C.23.. 468', 477^ 
 
 V. Thompson, 2 Strobh. L. 
 
 (s. c.) l2...-75^ 4033, 4753 
 
 V. Topeka, 36 Kan. 76.... 628'« 
 V. Towle, 80 Me. 349, 6 
 
 New Eng. Rep. 644... 535^ 
 •». Towle, 80 Me. 349, 6 
 
 New Eng. Rep. 460... 5416 
 V. Trefethen (Me.) 3 New 
 
 Eng. Rep. 842. 5416 
 
 «. Trenton, 36 N. J. L. 201 71' 
 «. Troth, 34N. J. L. 379.. 71' 
 V. Tupper, Dudlev, L. 135 35' 
 V. TurnbuU, 78 Me. 392, 3 
 
 New Eng. Rep. 45 541,
 
 TABLE OF CASES. 
 
 Ixxxvii 
 
 State V. Wilkinson, 2 Vt. 480... 70* 
 V. Williams (Del.) 18 Atl. 
 
 Rep. 949 4' 
 
 V. Williams, 30 N. J. L. 102 49* 
 V. Williams, 30 N. J. L. 112 46' 
 v. Willis, 104 N. C. 764, 106 
 
 N. C. 804 537* 
 
 V. Wilson, 43 Me. 9 
 
 1883. 4823, 560' 
 
 V. Witbam, 72 Me. 535.... 620"- 
 V. Yopp, 97 N. C. 477.. -8*, 299- 
 Staten Island Rapid Transit R. 
 Co. V. New York, 119 
 
 N. Y. 96. 487' 
 
 Steamboat Globe v. Kurtz, 4 G. 
 
 Greene, 433- 5303.531^ 
 
 V. Kurtz, 4 G. Greene, 430 
 
 ... 4793, 480' 
 
 Stearns v. Richmond Paper Mfg. 
 Co. (Va.) 14 Va. L.J. 
 
 465 238' 
 
 Stebbins v. Mayer, 38 Kan. 573.. 628" 
 
 V. Walker, 46 Mich. 5 610^ 
 
 Stedman v. Smith, 8 El. & Bl. 1. 
 
 210* 213 2333* 
 Steele?). SuTlivanr7'0 Ala. 589.. '."565' 
 «. Thatcher, 1 Ware, 91... 371* 
 Steere v. Tiffany, 13 R. I. 568... 
 
 571', 576% 577« 
 
 V. Tiffany, 13 R. I. 570.1768, 5701 
 Steers v. Brooklyn, 101 N. Y. 51, 
 
 1 Cent. Rep. 798. 385% 3973 
 Steffen v. Chicago & N. W. R. 
 
 Co. 46 Wis. 259 139' 
 
 Stein V. Burden, 24 Ala. 130, 60 
 
 Am. Dec. 453.3553,428-, 44P 
 V. Burden, 24 Ala. 148.... 452' 
 «. Burden, 29 Ala. 127, 65 
 Am. Dec. 394; S. C. 24 
 Ala. 130, 60 Am. Dec. 
 
 453... 44P, 443«, 451^ 
 
 Stephen Morgan, The, 94 U. S. 
 
 599, 24 L. ed. 266. ... 369' 
 Stephens v. Benson, 19 Ind. 369. 182' 
 Stephenson v. Goff, 10 Rob. (La.) 
 
 99, 43 Am. Dec. 171.- 397' 
 Sterling, The, 106 U. S. 647, 27 
 
 L. ed. 98. 869' 
 
 V. Jackson, 69 Mich. 488, 
 
 14 West. Rep. 229.504, 507 
 V. Merrill, 124 111. 522, 14 
 
 West. Rep. 399. 342' 
 
 V. Thomas, 60 111. 264.342', 343'^ 
 Sterling Hydraulic Co, v. Wil- 
 liams, 66 111. 397 
 
 204\ 2213^224* 
 
 Sterman v. Kennedy, 15 Abb. Pr. 
 
 201 775 
 
 Stetson D. Chicago & E. R. Co. 75 
 
 111.74 73« 
 
 Stetson®. Dow, 16 Gray, 372 255' 
 
 V. Faxson, 19 Pick. 147.75*, 474^ 
 Stevens v. Kelley, 78 Me. 445, 3 
 New Eng. Rep. 230, 
 
 232 283', 284, 4403 
 
 0. Kelley (Me.) 5 New Eug. 
 
 Rep. 871 548« 
 
 V. Orr, 69 Me. 323 1713, 1734 
 
 V. Paterson & N. R. Co. 34 
 
 N. J. L. 532, 540.385', 393^ 
 
 V. Stevens, 11 Met. 251.... 202' 
 
 Stevenson?). Erskine,99Mass. 367 1633 
 
 v. IStewart. 7 Phila, 293... 577* 
 
 V. Wallace, 27 Gratt. 77... 
 
 38', 198-, 2163 
 
 Stewart v. Putnam, 127 Mass. 403 
 
 49\62" 
 
 V. Schneider, 22 Neb. 286. 299* 
 Stiles V. Cardiff Steam Nav. Co, 
 33 L. J. N. S. Q. B. 
 
 310 624-^ 
 
 V. Cardiff Steam Nav. Co. 
 33 Q. J. N. S. Q. B. 
 
 311- 617' 
 
 V. Hooker, 7 Cow. 266 2623 
 
 Stillwell V. Foster, 80 Me. 333, 6 
 New Eng. Rep. 649... 
 
 1613*, 1731 
 
 Stimmel v. Watts (Sup. Ct.) 30 N. 
 
 Y. S. R. 380 392* 
 
 Stivers v. Home, 62 Mo. 473 230' 
 
 Stock©. Boston, 149 Mass. 410- - 
 
 326% 329', 334-2 
 
 Stockport Water Works Co. v. 
 Potter, 7 Hurl. & N. 
 
 159. 291« 
 
 Stockton V. Baltimore & N.Y. R, 
 Co. 1 Inters. Com. Rep. 
 411, 32 Fed. Rep. 9.. 
 
 • 380', 466*5% 492', 538' 
 
 Stoddard v. Filgur, 21 111. App. 
 
 560... .- 300-^ 
 
 Stoffel V. Schroeder, 62 Mo. 150. 230' 
 Stokes V. Saltonstall. 38 U. S. 13 
 
 Pet. 181, 10 L. ed. 115 156- 
 Stokoe V. Singers, 8 El. «& Bl. 36 
 
 355% 357s 
 
 V. Singers, 8 El. & Bl. 31- 
 
 39 5793 
 
 Stone V. Clark, 1 Met. 378 163' 
 
 V. Donaldson, 1 Pinney, 393 5913 
 V. Fairbury, P. & N. W. 
 
 R. Co. 68 111. 394 82' « 
 
 V. Kopka, 100 Ind. 458.... 5913 
 v. New York, 25 Wend. 
 
 173, 174 -.6' 3, 647' 
 
 V. Roscommon Lumber Co, 
 
 59 Mich. 24 433* 
 
 V. Yeovil, L. R. 1 C. P. 
 
 Div. 691 453»
 
 Ixxxviii 
 
 TABLE OF CASES. 
 
 Storer v. Freeman, 6 Mass. 435, 
 439 
 
 V. Freeman, 6 Mass. 439.. 
 
 3788, 
 
 Storrs V. Emerson, 72 Iowa, 390. 
 
 V. Utica. 17 N. Y. 104.1141, 
 
 Story V. New York E. R. Co. 90 
 
 N. Y. 122. 
 
 842, 2924, 3114^ 
 
 V. New York E. R. Co. 90 
 
 N. Y. 122. 159. 
 
 V. New York E. R. Co. 90 
 
 N. Y. 185 -- 
 
 Stoughton V. Baker, 4 Mass. 522. 
 
 71^ 4033, 4go8^ 
 
 V. Baker. 4 Mass. 523, 528 
 
 V. State, 5 Wis. 291 
 
 Stough ton's App. 88 Pa. 198 
 
 Stout V. Keyes, 2 Doug. (Mich.) 
 
 184.... 
 
 V. Mc Adams, 3 111.67 
 
 Stovall V. Emerson, 20 Mo. App. 
 322, 2 West. Rep. 614. 
 
 Stover V. Jack, 60 Pa. 339 
 
 Strader v. Graham, 51 U. S. 10 
 
 How. 82, 13 L. ed. 337 
 
 Strang v. Newlin, 38 How. Pr. 
 
 364 
 
 Stratton v. Currier, 81 Me. 497, 3 
 L. R. A. 809, and note 
 
 383*, 404*, 550, 
 
 V. Staples, 59 Me. 94 
 
 V. Staples. 59 Me. 95 
 
 Streett v. Laumier, 34 Mo. 469 . . 
 
 627', 
 
 Strickler v. Todd, 10 Serg. & R. 
 
 63 420*, 425. 426', 
 
 Stringer v. Frost, 116 Ind. 477, 2 
 
 L. R. A. 614 
 
 Strong V. Benedict, 5 Conn. 210. 
 Strother v. Lucas, 37 U. S. 12 Pet. 
 
 446, 9L. ed. 1151.1883, 
 Stroyhan v. Knowles, 6 Hurl. & 
 
 N.454 
 
 Struthers v. Dunkirk, W. & P. 
 
 R. Co. 87 Pa. 286 
 
 Stuart V. Clark, 2 Swan (Tenn.) 
 
 9, 58 Am. Dec. 49... 
 
 389^4043, 
 
 V. Clark, 2 Swan, 15 
 
 V. Havens, 17 Neb. 211 
 
 V. Hawley, 22 Barb. 619.. 
 
 185*, 
 
 Studwell T. Ritch, 14 Conn. 292 
 
 V. Ritch, 14 Conn. 293.... 
 
 Stump V. jMcNairy, 5 Humph. 363 
 
 Stumps V. Kelley, 22 111. 140 
 
 617^619'3 
 
 Sturgis V. Robbins, 62 Me. 289.. 
 
 378'2 
 
 3931 
 6345 
 342' 
 
 326^ 
 
 435^ 
 
 432* 
 
 532' 
 5505 
 
 478« 
 80« 
 
 443* 
 545* 
 
 5953 
 
 3783 
 
 372' 
 624* 
 
 550* 
 
 110' 
 5683 
 
 637' 
 
 427* 
 
 127* 
 
 428- 
 
 189' 
 198 
 922 
 
 5503 
 
 3773 
 78« 
 
 645= 
 
 592'^' 
 592' 
 40«* 
 
 , 620« 
 
 6483 
 
 Sturr V. Beck, 133 U. S. 541, 33 
 
 L. ed. 761 
 
 355*, 410^, 4453. 446» 
 
 Stuyvesant v. Woodruff, 21 N. J. 
 
 L.133. 169«,241» 
 
 Submarine Tel. Co. v. Dixon, 15 
 
 C. B. N. S. 759 610* 
 
 Suffield V. Brown, 10 Jur. N. S. 
 
 Ill 169^ 
 
 V. Brown, 33 L. .J. Ch. 249 168 
 Sullivan v. Lafayette Co. Suprs. 
 
 58 Miss. 790 
 
 4805, 4812^ 485* 
 
 V. Lafayette Co. Suprs. 58 
 
 Miss. 799 482» 
 
 V. Phillips, 110 Ind. 320, 9 
 
 West. Rep. 49. 290', 304^, 326^ 
 
 V. Royer, 72 Cal. 248 IP, 90* 
 
 V. Scripture, 3 Allen, 564. 611^ 
 V. Spotswood, 82 Ala. 163. 
 
 ...374', 406'^ 
 
 V. Spotswood, 82 Ala. 167. 403» 
 V. Webster, 16 R. I. — ,5 
 
 New Eng. Rep. 331... 464» 
 Sullivan Co. v. Arnett, 116 Ind. 
 
 438... 6351-^ 
 
 Summers «. Daviess County, 103 
 
 Ind. 262, 1 West. Rep. 
 
 '^17 3355' 
 
 V. PeopleV29'ifi'App."i70 532» 
 Sunbury & E. R. Co. v. Hummell, 
 
 27 Pa. 99 664* 
 
 Sunnyside, The, 91 U. S. 208, 23 
 
 L. ed. 302.. 369' 
 
 Supervisors v. United States, 71 
 
 U. S. 4 Wall. 435, 18 
 
 L. ed. 419 339» 
 
 Surocco V. Geary, 3 Cal. 69.. 5*, 63, 647» 
 Sury V. Pigot, 1 Popham, 166 
 
 .177, 573^ 574* 
 
 Susquehanna Depot v. Simmons, 
 
 112 Pa. 384, 3 Cent. 
 
 Rep. 140... 124^ 323* 
 
 Sussex V. Stroder, 18 N. J. L. 108, 
 
 121 ..339* 
 
 Sutter V. Van Derveer, 47 Hun, 
 
 3G6 537'«, 54P 
 
 Sutton V. Groll, 42 N. J. Eq. 213, 
 
 4 Cent. Rep. 251.. 246', 265* 
 V. Moody, 1 Ld. Raym. 250, 
 
 251 526*, 543' 
 
 Sweeney v. Merrill, 38 Kan. 216. 
 
 .135*, 642* 
 
 ®. Shakespeare, 42 La. Ann. 
 
 387', 390'*, 391* 
 
 Sweeny v. Old Colony & N. R. 
 
 Co. 10 Allen, 368 
 
 20*, 23', 253, 263, 150«, 566* 
 V. Old Colony & N. R. Co. 
 
 10 Allen, 372, 373... 19, ^5^
 
 TABLE OF CASES. 
 
 IXXXIX 
 
 Swett V. Cutts, 50 N. H. 439, 447 
 
 ...12^ 271'^. 295'. 299", 300= 
 
 Swift?). Coker, 83 Ga. 789 244^ 
 
 V. Goodrich, 70 Cal. 103.. 409= 
 Swindon Water Works Co. v. 
 
 Wilts & B. Canal Nav. 
 
 Co. L. R. 7 H. L. 697. 
 
 4.53', 456' 
 
 V. Wilts & B. Canal Nav. 
 
 Co. L. R. 7 II. L. 697, 
 
 alKtming L. R. 9 Ch. 
 
 451 4545 
 
 Swords V. Edgar, 59 N. Y. 28. . . 
 
 44', 48, 
 
 49' », 51'=, 56^ 58', 61', 565' 
 V. Edgar, 59 N. Y. 34 
 
 .. - 523, 58', 112, 112' 
 
 Sykes v. Pawlet, 43 Vt. 446 125' 
 
 Symonds v. Clay County, 71 111. 
 
 357 335' 
 
 Syracuse, The, 18 Fed. Rep. 828 369^ 
 
 T. 
 
 Taff Vale R. Co. ■». Giles, 23 L. 
 
 J. N. S. Q. B. 43 639« 
 
 Taggart v. Newport St. R. Co. 16 
 
 R. I. — , 7 L. R. A. 
 
 205 95=3, 2513 
 
 Tainter v. Morristown, 19 N. J. 
 
 Eq. 59.... 71' 
 
 Talbot V. Hudson, 16 Gray, 417, 
 
 423,426 ..13^ 5.32'' 
 
 Talbott V. Grace, 30 Ind. 389 560' 
 
 V. King, 32 W. Va. 6 95'' 
 
 Tallmadge v. East River Bank, 26 
 
 N. Y. 105 160" 
 
 Tanner v. New York Cent. & H. 
 
 R. R. Co. 108 N. Y. 
 
 623, 11 Cent. Rep. 82. 
 
 651, 669'» 
 
 Tapling v. Jones, 13 C. B. N. S. 
 
 876 255' 
 
 Tappendorff v. Downing, 76 Cal. 
 
 169 398'' 
 
 Tardy v. Creasy, 81 Va. 556, 557 158'> 
 
 Tarrant v. Terry, 1 Bay, 239 183" 
 
 Tarry v. Ashton, L. R. 1 Q. B. 
 
 Div. 314.38, 105S 154^ 232' 
 Tate V. Ohio & M. R. Co. 7 Ind. 
 
 479 82' 
 
 Taylors. Austin, 32 Minn. 247.. 292" 
 v. Baltimore & O. R. Co. 33 
 
 W. Va. 39 353 
 
 V. Fickas, 64 Ind. 167, 31 
 
 Am. Rep. 114 
 
 ..280', 358=, 1483 
 
 V. Hampton, 4 McCord, L. 
 
 96 571', 575', 577"= 
 
 Taylor*. Hampton, 4 McCord, L. 
 
 96, 103 576* 
 
 V. Monroe, 43 Conn. 36.80=, 471* 
 V. New York & L. B. R. 
 
 Co. 38 N. J. L. 28.-.. 265' 
 V. Peckliam, 8R. I. 349, 352 339» 
 
 V. Welch, 6 Or. 198 280' 
 
 V. Whitehead, 2 Doug. 745 124" 
 V. Wilmington & M. R. Co. 
 
 4 Jones, L. 282, 285.. 482» 
 Temperance Hall Asso. v. Giles, 
 
 33 N. J. L. 260-...36=, 108* 
 Templeton v. Voshloe, 72 Ind. 134 325= 
 Tenants. Goldiug. See Tenant©. 
 Goldwin. 
 V. Goldwin, 2 Ld. Raym. 
 10«9, 1 Salk. 21, 360- . 
 
 124=, 588' 
 
 V. Goldwin, 2 Ld. Raym. 
 1089, 1 Salk. 21, 6 Mod. 
 
 311, Holt, 500 
 
 .151, 287', 288"'^ 
 
 Ten Broeck v. Livingston, 1 
 
 Johns. Ch. 357, 1 N. 
 
 Y. Ch. L. ed. 170.... 580' 
 
 Tenem Ditch Co. v. Thorpe 
 
 (Wash. Terr.) 20 Pac. 
 
 Rep. 588 4483, 446' 
 
 Tenney v. Tuttle, 1 Allen, 185. .. 613» 
 Terre Haute v. Hudnut, 112 Ind. 
 542, 11 West. Rep. 333 
 
 310^ 316=, 323' 
 
 V. Hudnut, 112 Ind. 542- 
 
 548, 11 West. Rep. 333 326 * 
 Terre Haute & I. R. Co. v. Buck, 
 96 Ind, 346, 49 Am. 
 
 Rep. 186 657» 
 
 V. Clem, 123 Ind. 16, 7 L. 
 
 R. A. 588. 65G3 
 
 «. Graham, 95 Ind. 286 365' 
 
 V. Scott, 74 Ind. 29 90' 
 
 Terry «. New York, 8 Bosw. 504 256* 
 V. Smith, 47 Hun, 333.422", 427= 
 Teschemacher v. Thomoson, 18 
 
 CaJ. 21- ; 3783* 
 
 Teutonia, The, 90 U. S. 23 Wall. 
 
 77, 23 L. ed. 44 369' 
 
 Tewksbury v. Bucklin, 7 N. H. 
 
 518- 622* 
 
 Texas & P. R. Co. v. Mangum, 68 
 
 Tex. 342 41", 51 
 
 V. New Orleans, 40 Fed. 
 
 Rep. Ill 469» 
 
 V. Ro.sedale S. R. Co. 64 
 Tex. 80,22Am.&Eng. 
 
 R. R. Cas. 160 248=, 93" 
 
 Thayer v. Arnold, 4 i\Iet. 589-. 
 
 5913, 5924 
 
 V. Boston, 19 Pick. 511.... 
 
 .336', 337=, 344*
 
 xc 
 
 TABLE OF CASES. 
 
 Thayer e. Boston, 19 Pick.511,514 
 
 75*. 47# 
 
 V. New Bedford B. Co. 125 
 
 Mass. 253_. 474' 
 
 ■». Payne, 3 Cush. 327 167' 
 
 V. Payne, 2 Cush. 3B1 166' 
 
 V. Payne, 2 Cush. 332.1746, 241^ 
 Theise v. St. Paul, 36 Minn. 526. 342' 
 Theobold v. Louisville, N. O. & 
 T. R. Co. 66 Miss. 279, 
 
 4L. R. A. 735 90' 
 
 Third Ave. R. Co., i^e Petition (N. 
 
 Y.)9L. R. A. 124.... 95^ 
 Third Municipality «. Blanc, 1 
 
 La. Ann. 385 602^ 
 
 Thoburn v. Campbell, bO Iowa, 
 
 338 644^, 649', 660' 
 
 Thomas v. Armstrong, 7 Cal. 286 485 
 V. England, 71 Cal. 456... 263^ 
 
 V. Hill, 31 Me. 252. 576' 
 
 V. Kenyon, 1 Daly, 132... 302' 
 V. Morgan, 2 Cromp. M. »& 
 
 R. 496 6043, 606^ 
 
 V. Thomas, 2 Cromp. M. & 
 
 R. 33, 40 2556 
 
 V. Thomas, 2 Cromp. M. & 
 
 R. 34 5735, 574 
 
 ®. Western Union Teleg. 
 
 Co. 100 Mass. 156 251' 
 
 «. Wiggers, 41 111. 471 166' 
 
 «. Winchester, 6 N. Y. 397 
 
 362^ 6123 
 
 Thompson v. Androscoggin River 
 Imp. Co. 54N. H. 545 
 
 375'\ 3773, 405' 
 
 D. Bertrand, 23 Ark. 731.. 6358 
 V. Cincinnati, L. & C. R. 
 
 Co. 54Ind. 197 129'' 
 
 V. Gibson, 7 Mees. & W.456 54' 
 V. McElarney, 82 Pa. 174 
 
 ..182', 1848 
 
 V. Miner, 30 Iowa, 386.166', 167' 
 V. New York & H. R. Co. 
 3 Sandf. Ch. 625, 7 N. 
 Y. Ch. L. ed. 980.... 487^ 
 V. North Eastern R. Co. 31 
 
 L.J.N. S.Q.B. 194.5666, 567^ 
 V. Smith, 79 Me. 160, 4 New 
 
 Eng. Rep. 140 5416 
 
 V. Sumerville, 16 Barb. 473 209^ 
 V. The Catharina, 1 Pet. 
 
 Adm. 104. 371« 
 
 «. Uglow, 4 Or. 369 159'' 
 
 Thomson v. Boonville, 61 Mo. 282 337^ 
 Thornton v. Grant, 10 R. I. 477. 360' 
 Thorp V. Keokuk Coal Co. 48 N. 
 
 Y. 253 230' 
 
 Thunder Bay River Booming Co. 
 V. Speechly, 31 Mich. 
 336 3774 
 
 405' 
 
 38' 2 
 
 195 
 
 2473 
 616' 
 125' 
 
 Thunder Bay River Booming Co. 
 «. Speechly, 31 Mich. 
 
 336,343 408* 
 
 V. Speechly, 31 Mich. 336, 
 
 345 
 
 Thurston®. Hancock,12 Mass. 220 
 
 V. Hancock, 12 Mass. 221. 
 
 Tiffany v. U. S. Illuminating Co. 
 
 Daily Reg. April 9, 
 
 1884 
 
 Tiffts ». Tiffts, 4Denio, 175 
 
 Tighe V. Lowell, 119 Mass. 472.. 
 Tilley v. St. Louis & S. F. R. Co. 
 
 49 Ark. 535 666^ •* 
 
 Tindley v. Salem, 137 Mass. 171 347'^ 
 
 ..347^ 349^ 
 
 V. Salem, 137 Mass. 171, 172 
 
 347^ 349^ 
 
 «). Salem, 137 Mass. 171,174 351' 
 V. Salem, 137 Mass. 172... 
 
 ...3375, 3433, 345» 
 
 V. Salem, 137 Mass. 173... 334^ 
 Tinicum Fishing Co. v. Carter, 
 
 61 Pa. 21 3783, 
 
 Tinkham v. Arnold, 3 Me. 120_. 
 
 Tinsman v. Belvedere Delaware 
 
 R. Co. 26 N. J. L. 148, 
 
 69 Am. Dec. 565 
 
 Tipping V. St. Helen's Smelting 
 Co. 4 Best & S. 600, 11 
 
 H. L. Cas. 642 
 
 Tohey ■«. Moore, 130 Mass. 448.. 
 Tobin V. Portland, S. & P. R. Co. 
 
 59 Me. 183 
 
 Todd V. Cochell, 17 Cal. 97 
 
 272', 432', 
 
 V. Flight, 9C. B. N. S.377 
 
 ...44*, 45' 4,46, 52^ 53*, 64 
 
 V. Stokes, 10 Pa. 155 220' 
 
 V. Troy, 61 N. Y. 506. 331^, 343- 
 Toledo & W. R. Co. v. Goddard, 
 
 25Ind. 185 3623 
 
 Toledo, P. & W. R. Co. v. Johns- 
 ton, 74 111. 83 6363 
 
 V. Pindar, 53 111. 447. 654' 
 
 Toledo, W. & W. R. Co. ■«. Beggs, 
 
 85 111. 80 156' 
 
 ». Brannagan, 75 Ind. 490 
 
 ....128', 129' 
 
 V. Larmon, 67 111. 68. 668' 
 
 V. Maxfield, 72 111. 95 668-^ 
 
 1;. Muthersbaug, 71 111. 572 654' 
 V. Thompson, 71 111. 434.. 639^ 
 
 Tolman v. Casey, 15 Or. 83 447' 
 
 Tomle V. Hampton, 129 111. 379.. 
 
 20'3, 73'° 
 
 Tomlin v. Dubuque, B. & M. R. 
 
 Co. 32 Iowa, 106.3726, 386* 
 Tomlinson v. Derby, 43 Conn. 
 
 562 80'S 471» 
 
 514' 
 
 2372 
 
 4912 
 
 287'' 
 160* 
 
 5683 
 
 440'
 
 TABLE OF CASES. 
 
 XCl 
 
 Timawanda R. Co. v. Hunger, 5 
 
 Denio, 259 589 
 
 Toomey v. Sauboin, 1-16 Mass. 28, 
 
 5 New Eng. Rep. 549. 19' » 
 Toothaker».WinsIow. 61 Me. 123. 377' ^ 
 Tootle V. Cliftou, 22 Ohio St. 247 
 
 ....2958, 298= 
 
 Totel V. Bonnefoy, 123 111. 653, 
 
 12 West. Rep. 781.... 262' 
 Tourtelot ». Rosebrook, 11 Met. 
 
 460 135^ 6444, 648^ 
 
 V. Rosebrook, 11 Met. 462 
 
 645«, 647'^ 
 
 Tousey v. Roberts, 21 Jones & S. 
 
 446 193 
 
 Tower v. Tower. 18 Pick. 263... 626'^ 
 TowDsend v. McDonald, 14 Barb. 
 
 467 262^ 
 
 V. McDonald, 12 N. Y. 381 571' 
 V. Wathen, 9 East, 277.... 598' 
 Tracy v. Atherton, 36 Vt. 503 ... 582^ 
 Train v. Boston Disinfecting Co. 
 
 144 Mass. 523, 4 "New 
 
 Eug. Rep. 437 13* 
 
 Tranter v. Sacramento, 61 Cal. 
 
 275 3413 
 
 Trask v. Shotwell, 41 Minn. 66.. 21^ 
 Treadwell v. Inslee, 120 N. Y. 458 
 
 168-*, 2BV 
 
 Treat v. Bates, 27 Mich. 390.. 79', 478« 
 ®. Lord. 42 Me. 552. 
 
 377^ 404^ 406', 412^, 550" 
 Tremain v. Cohoes Co. 2 N. Y. 
 
 163 39*^ 
 
 Trompen v. Verhage, 54 Micli.'soi 626'^ 
 Trausclair v. Pacific Coast S. S. 
 
 Co. 80 Cal. 521 3633 
 
 Trowbridge v. Brookline, 144 
 
 Mass. 139, 3 New Eng. 
 
 Rep. 789 257^ 266 
 
 Trower v. Chadwick, 3 Bing. N. 
 
 C. 334 38- 
 
 «). Chadwick, 3 Bing. N. C. 
 
 334, 6 Bing. N. C. 1.. 
 
 - .1993, 201' 
 
 Troxel v. Vinton, 77 Iowa, 99... 129^ 
 
 Troy V. Coleman, 58 Ala. 570. . . 326^ 
 
 V. Troy & L. R. Co. 4y N. 
 
 Y. 657. 114' 
 
 Truro, The, 31 Fed. Rep. 158... 370'^ 
 Trustees v. Lynch, 70 N. Y. 440. 228' 
 
 «. Tatman, 13 111. 27. 479'' 
 
 Trustees of Brook liaveu^j. Strong, 
 
 60 N. Y. 56 498'\ 501^ 
 
 Tubervil v. Stamp, 1 Salk. 13 ... 
 
 641'», 644' 
 
 v. Stamp, 1 Salk, 13, 13 
 
 Mod. 152 647- 
 
 Tucker v. Henniker, 41 N. H. 317 127'« 
 V. Howard, 122 Mass. 529. 242» 
 
 Tucker t). Illinois C. R. Co.(La.)7 
 So. Rep. 124 
 
 ....27^53^ l02^ 1043, los' 
 
 V. Jewett, 11 Conn. 321... 574« 
 V. Salem Flouring Mills 
 
 Co. 15 Or. 581 ...433', 441' 
 Tudor Ice Co. v. Cunningham, 8 
 
 Allen, 139 242^ 
 
 Tuflf V. Warman, 5 C. B. N. S. 573 365' 
 Tugwell V. Eagle Pass Ferry Co. 
 
 74 Tex. 492 481-' "f* « 
 
 Tulk V. Moxhay, 3 Phill. Ch. 774 
 
 224^ 228- 
 
 Turalin v. Parrott, 82 Ga. 732... 5W 
 
 Tupper V. Clark, 43 Vt. 200 144* 
 
 Turnbull v. Rivers, 3 McCord, L. 
 
 89 168« 
 
 V. Rivers, 3 McCord, L. 131 425« 
 
 Turner v. Buchanan, 83 Ind. 147 128« 
 
 V. Coffin, 12 Allen, 401.-.. 183^ 
 
 «. Cory, 5 Ind. 216 628' 
 
 «. Dartmouth, 13 Allen, 291 
 
 3473, 349^ 350 
 
 V. Fitchburg R. Co. 145 
 Mass. 433, 5 New Eng. 
 
 Rep. 423 2393 ' 
 
 ®. Holland, 65 Mich. 453. 8 
 
 West. Rep. 796...402S 517'^ 
 ». Mirfield, 34 Beav. 390.. 8^ 
 V. Newburgh, 109 N.Y. 301 115' 
 Tuttlew. Brush Electric & 111. Co. 
 
 50 N. Y. Super Ct. 464 247^ 
 V. Chicago, R. I. & P. R. 
 
 Co. 48 Iowa, 236 155* 
 
 v: Harry, 56 Conn. 194, 6 
 
 New Eng. Rep. 483... 421' 
 Twenty-Ninth Street, Be, 1 Hill, 
 
 189 255 
 
 Twigg V. Ryland, 62 Md.'sso"" 
 
 6063', 61 9^ 624«, 630-3 
 
 Tyler v. Hammond, 11 Pick. 193 573^ 
 V. Hammond, 11 Pick. 193, 
 
 220. 574'' 
 
 1}. Wilkinson, 4 Mason, 397 
 
 389-, 410', 4423, 4442 
 
 v. Wilkinson, 4 Mason, 400 544- 
 Tyrrell v. Lockhart, 3 Blackf. 136 4033 
 
 U. 
 
 Ulbricht v. Enfaula Water Co. 86 
 
 Ala. 587. 
 
 410'. 411'. 457\ 477' 
 
 Uline V. New York Cent. <Sc H. R. 
 R. Co. 101 N. Y. 89, 2 
 Cent. Rep. 116 4698 
 
 Union Canal Co. v. Landis, 9 
 
 Watts, 228 380^
 
 xcu 
 
 TABLE OF CASES. 
 
 Union Mill & Min. Co. v. Ferris, 
 
 2 Sawy. 176.. 
 
 44 1^ 442^ 443«, 444^ 
 
 Union Pac. R. Co. v. Rollins, 5 
 
 Kan. 167.. . 59P 
 
 Union Sprins^s v. Jones, 58 Ala. 
 
 654 326^ 
 
 Union Trust Co. v. Cuppy, 26 
 
 Kan. 754 435* 
 
 United States v. Appleton, 1 
 
 Sumn. 492 
 
 ...162, 175'-, 171«, 191', 419* 
 V. Baltimore & O. R Co. 1 
 
 Hughes, C. C. 188.182', 184« 
 V. Bevans, 16 U. S. 3 
 Wheat. 336, 4 L. ed. 
 
 404 371''8 
 
 V. Hoskins, 5 Mackev, 478, 
 
 8 Cent. Rep. 705 628''^ 
 
 1). New Bedford Bridge, 1 
 
 Woodb. & M. 487..-. 374» 
 V. Nickerson, 58 U. S. 17 
 
 How. 204, 15L. ed. 219 531' 
 V. Paclieco, 69 U. S. 2 Wall. 
 587, 17 L. ed. 865.... 
 
 378^ 379', 383*, 393' 
 
 V. Railroad Bridge Co. 6 
 
 McLean, 517 79' 
 
 V. The Montello. 87 U. S. 
 20 Wall. 442, 443, 22 
 
 L. ed. 394 374^ 
 
 Upham ■B.Worcester, 113 Mass. 97 91' 
 Upjohn V. Richland Bd.of Health, 
 
 46 Mich. 542 276 
 
 Urquhart o. Ogdensburg, 91 N. Y. 
 
 67 318 
 
 V. 
 
 Vail V. Mix, 74 III. 127. 497= 
 
 V. Mix, 74 111. 128 427' 
 
 Valentine v. Piper, 22 Pick. 85.. 380« 
 Van Bergen v. Van Bergen, 2 
 
 Johns. Ch. 272, 1 N. 
 
 Y. Ch. L. ed. 875.... 476* 
 V. Van Bergen, 3 Johns. 
 
 Ch. 282, 1 N. Y. Ch. 
 
 L. ed. 619 5453 
 
 Van Bibber v. Hilton, 84 Cal. 585 459' 
 Vancouver, The, 2 Sawy. 381... 
 
 .-4793, 480', 530^ 5315 
 
 Vandegrift B. Delaware R. Co. 2 
 
 Houst. 287 59P 
 
 Vandenburg v. Truax, 4 Denio, 
 
 464. .654', 6552 
 
 V. Van Bergen, 18 Johns. 
 
 212... 287'^ 
 
 Vanderwiele v. Taylor, 65 N. Y. 
 
 341 302' 2 
 
 Vandewalker v. Osmer, 65 Barb. 
 
 556.. 634» 
 
 Van Epps v. Mobile Co. Comrs. 
 
 25 Ala. 460 3393^ 
 
 Van Fleet t\ New York Cent. & 
 
 H. R. R. Co. (Sup. Ct.) 
 
 27 N. Y. S. R. 76.... 652» 
 Van Hoesen v. Coventry, 10 Barb. 
 
 521... 409^* 
 
 Van Horn v. Grand Trunk R. Co. 
 
 18 U. C. Q. B. 856... 428^ 
 Van Leuven v. Lyke, 1 N. Y. 515 
 
 585^586^ 
 
 587', 591*. 5936, 604', 629' 
 Vannest v. Fleming. 79 Iowa, 638 3042- 
 Van Ohlen v. Van Ohlen, 56 111. 
 
 528. 182* 
 
 Van Pelt v. Davenport, 42 Iowa, 
 
 302 321'- 
 
 V. Davenport, 42 Iowa, 308, 
 
 20 Am. Rep. 622 
 
 .290^ 815, 325' 
 
 Van Sickle v. Haines, 7 Nev. 249 444* 
 Van Steenburgh v. Tobias, 17 
 
 Wend. 562. 594^627^^ 
 
 Van Wagenen v. Cooney, 45 N. 
 
 J. Eq. 24 477* 
 
 Van Winkle v. Am. S. B. I. Co. 
 
 (N. J.)19Atl. Rep. 472 
 
 1053, 154' 
 
 VanWormer v. Albany, 15 Wend. 
 
 262... 648* 
 
 Van Wycklyn v. Brooklvn, 118 
 
 N. Y. 424....."...808S 425« 
 
 Varick v. Smith, 5 Paige, 143 855* 
 
 V. Smith, 9 Paige, 187, 3 N. 
 
 Y. Ch. L. ed. 659 548' 
 
 V. Smith, 9 Paige, 547, 4 
 
 N. Y. Ch. L. ed. 811. 
 
 386', 889^ 405' 
 
 Varney ■». Manchester, 58 N. H. 
 
 430... .- 126' 
 
 Vates V. Cornelius, 59 Wis. 615.. 634* 
 Vaughan v. Menlove, 3 Bing. N. 
 
 C. 468 ..6443,647* 
 
 V. Menlove, 3 Bing. N. C. 
 
 468, 4 Scott, N. R. 244 641 
 V. Menlove, 8 Bing. N. C. 
 
 468, 7 Car. &F. 525.. 151* 
 13. Taff Vale R. Co. 3 Hurl. 
 
 & N. 743 665^ 
 
 V. Taff Vale R. Co. 5 Hurl. 
 
 & N. 678 .185^ 667' 
 
 V. Taff Vale R. Co. 5 Hurl. 
 
 &N. 679 138', 648* 
 
 Veazie v. Dwinel, 50 Me. 479.404«, 550* 
 Vedder v. Vedder, 1 Denio. 257. 287* 
 Veghte V. Raritan Water Power 
 
 Co. 19 N. J. Eq. 153 
 
 181', 182*
 
 TABLE OF CASES. 
 
 XCIU 
 
 Vegbte V. Raritan "Water Power 
 
 Co. 19 N. J. Eq. 156. 571' 
 
 Venard v. Cross, 8 Kan. 248 79' 
 
 Yicksburg & M. R. Co. v. Alex- 
 ander. 63 Miss. 496... 247- 
 Yictoria Co. v. Victoria Bridge 
 
 Co. 68 Tex. 62 88« 
 
 Victory v. Balier, 67 N. Y. 366.. 19' 
 Vincennes v. Richards, 23 Ind. 
 
 481 304\ 31 1\ 322, 330* 
 
 Vinton v. Welsli, 9 Pick. 8T.... 532 
 Virginia Elirman, Tlie, 97 U. S. 
 
 3U0, 24 L. ed. 890..-. 369' 
 
 Yoeler e. Geiss, 51 Md. 407 
 
 571', 577«, 578^ 
 
 Yolk V. Eldred, 23 Wis. 410.377' '-, 550^ 
 
 Volunteer, The, 1 Sumn. 551 371^ 
 
 Yooght V. Winch, 2 Barn. & Aid. 
 
 662 -...374^ 4033, 4603 
 
 Voter V. Hobbs, 69 Me. 19-..167\ 419- 
 Yrooman v. Lawyer, 13 Johns. 339 
 
 586^ 607= 
 
 W. 
 
 Wabash, St. L. & P. R. Co. v. 
 
 Farver. Ill Ind. 195, 9 
 
 West. Rep. 621 328' 
 
 V. Locke, 112 Ind. 404, 11 
 
 West. Rep. 877 
 
 131^ 139, 145^ 6563 
 
 Wadhurst v. Damme, Cro. Jac. 
 
 45 ....6378, 628* 
 
 Wadsworth v. Smith, 11 Me. 278, 
 
 26 Am. Dec. 525. 376-', 
 
 3771234 404«_ 4123, 416, 5503 
 V. Tillotson, 15 Conn. 366, 
 
 39 Am. Dec. 391, note 
 
 442', 443' « 
 
 Waco V. Powell, 32 Tex. 258 602* 
 
 Waffle V. New York C. R. Co. 58 
 
 Barb. 413 326^ 478« 
 
 Waggoner v. Jermaine, 3 Denio, 
 
 306 483, 493^ 512 4 
 
 Wagner «. Bissell, 3 Iowa, 396.. 593- 
 V. Hanna, 38 Cal. lll_159^ 175-' 
 Wahle V. Reiubach, 76 111. 333 .. 288* 
 Wakelin v. London & S. W. R. 
 
 Co. L. R. 12 App. Cas. 
 
 51 364 
 
 Walcott V. Swampscott, 1 Allen, 
 
 101 347-, 351', 335'- 
 
 Waldron «. Haverhill, 143 Mass. 
 
 582, 3 New Ene. Rep. 
 
 683 r 351 
 
 Walesa. Ford, 8 N. J. L. 267... 622^ 
 
 Walker v. Allen, 72 Ala. 456 ... 406^ 
 
 i\ Armstrong, 2 Kan. 198. 480' 
 
 V. Bean, 34 Minn. 427 557' 
 
 Walker iJ.Boardof Public Works, 
 
 16 Ohio. 540 463= 
 
 V. Cronin, 107 Mass. 555, 
 
 564. 12' 
 
 V. DeraturCounty, 67Iowa, 
 
 307 128' 
 
 7J. Filts, 24 Pick. 191 633' 
 
 V. Herron, 22 Tex. 55 632' 
 
 V. Hoisington, 43 Vt. 608.. 635« 
 v. Jackson; 11 Mees. & W. 
 
 161.. 488» 
 
 «. Shackelford, 49 Ark. 503 231' 
 V. Shepardson, 2 Wis. 384. 
 
 468' 
 
 D. Shepardson. 2 Wis. 384, 
 
 4 Wis. 486 79' 
 
 V. Shepardson, 4 Wis. 486. 
 
 4'i3-, 5503 
 
 V. Shepardson, 4 Wis. 495. 412= 
 
 Wall V. Livezay, 6 Colo. 465 156* 
 
 Wallace v. Evans, 43 Kan. 509, 
 
 8L. R. A. 52 436^ 
 
 ». Muscatine, 4 Greene 
 
 (Iowa), 373 3283 
 
 Wallen v. McHenry, 3 Humph. 
 
 245_ 4883 
 
 Wallis V. Harrison, 4 Mees. & W. 
 
 538. 185« 
 
 Walsh V. Mead, 8 Hun, 387. 27^, 45, 49' 
 V. Virginia & T. R. Co. 8 
 
 Nev. Ill 147' 
 
 Walter v. Wicomico Co. 35 Md. 
 
 385.. 75\ 4753 
 
 Walters v. Pfeil, Moody & M. 363 
 
 193, 1992 
 
 Waltham «. Kemper, 55 111. 346. 3393 
 Wamesit Power Co. v. Allen, 130 
 
 Mass. 352 4583 
 
 Wanderer, The, 20 Fed. Rep. 140 370- 
 Wanger v. Hippie (Pa.) 11 Cent. 
 
 Rep. 776. 237«, 263' 
 
 Ward V. Andrews, 3 Mo. App. 
 
 275 38- 
 
 V. Creswell, wTlfe's, 255 "^ 499'' 
 
 V. Neal, 37 Ala. 501 180-2 
 
 V. Paducah So N. R. Co. 4 
 
 Fed. Rep. 863 6322 
 
 V. Ward, 7 Exch. 838 58P 
 
 Warj V. Allen, 140 Mass. 513, 1 
 New Eng. Rep. 733.. 
 
 r... 4093, 5443, 547" 
 
 V. Gay. 11 Pick. 106 156' 
 
 Warfel v. Knott, 128 Pa. 528 208- 
 
 Warhauer r. Randall, 109 !Mass. 
 
 586 578' 
 
 Waring v. Clarke, 46 U. S. 5 How. 
 
 441, 12 L. ed. 226 .... 371^ 
 Warne v. Oberly, 50 N. J. L. 108, 
 
 9 Cent. Rep. 502 603'' 
 
 Warner v. Cushman, 83 Me. 168 433' '
 
 xciv 
 
 TABLE OF CASES. 
 
 Warren v. Blake, 54 Me. 276 
 
 l63^ l68^ i69«, 1732 
 
 V. Blake, 54 Me. 281 573^ 
 
 V. Chambers, 25 Ark. 120, 
 
 4 Am. Rep. 23 3998 10 
 
 V. Kauffman, 2 Phila. 259. 256* 
 
 V. Mathews, 6 Mod. 73 500^ 
 
 V. Matthews, 1 Salk. 357.. 532^ 
 V. Spencer Water Co. 143 
 Mass. 9, 3 New Eng. 
 
 Rep. Ill - 4583 
 
 «. Spencer Water Co. 143 
 Mass. 155, 163, 3 New 
 
 Eng. Rep. 502 550« 
 
 V. Wright, 3 111. App. 288. 342' 
 Warsaw v. Dunlap, 113 In.l. 576 99= 
 V. Dunlap, 112 Ind. 579, 12 
 
 West. Rep. 141.. 101', 333^ 
 Washburn t>. Cuddihy, 8 Gray, 
 
 430 - - 635« 
 
 Washington, The. 76 U. 8. 9 
 Wall. 513, 19 L.ed. 787 
 
 369'2 
 
 Washington Cemetery v. Prospect 
 Park & C. I. R. Co. 08 
 
 N. Y. 591... .-- 90' 
 
 «. Prospect Park & C. I.R. 
 
 Co. 68 N. Y. 591, 593 93* 
 Washington Ice Co. v. Shortall, 
 
 101 111. 46.. -389'. 413', 513'^ 
 Washington Natural Gas Co. v. 
 Wilkinson (Pa.) 2 Atl. 
 
 Rep. 338 247= 
 
 Washington Toll Bridge Co. v. 
 
 Beaufort, 81 N. C. 491 484'^ 
 Wasmer v. Delaware. L. & W. 
 R. Co. 80 N. Y. 212, 
 
 36 Am. Rep. 608 652' 
 
 Wason V. Rowe, 16 Vt. 525 635= 
 
 Waters v. Lilley, 4 Pick. 145 
 
 l88^ 5131 
 
 V. Moss, 12 Cal. 535, 73 Am. 
 
 Dec. 561, note 608' 
 
 Watertown v. Mayo, 109 Mass. 
 
 315 133 
 
 Watkins v. Ho[manV4i'uVsri6 
 
 Pet. 25. 10 L. ed. 
 
 873 399' 
 
 V. Peck, 13 N. H. 360 .... 
 
 236^ 582' 
 
 V. Peck, 13 N. H. 376 .... 582'^ 
 Watson V. Alden, 8 Mass. 136... 442* 
 V. Gray, L. R. 14 Ch. Div. 
 
 192 210-', 213 
 
 v. Grav, L. R. 14 Ch. Div. 
 
 192, 194 209* 
 
 ». Home, 64 N. H. 416, 6 
 
 New Eng. Rep. 386.. 398^ 
 V. Kingston, 114 N. Y. 88. 
 
 80', 302', 8O33 
 
 Watson V. Lisbon Bridge, 14 Me. 
 
 201 635'» 
 
 V. Peters, 26 Mich. 508 
 
 ..412*, 517*- 
 
 «. Phelps, 40 Iowa, 482... 230' 
 Watt v. Trapp, 2 Rich. L. 136... 235*^ 
 Watts V. Kelson, L. R. 6 Ch. App. 
 
 106. 166', 171' 
 
 Watuppa Reservoir Co. v. Fall 
 River, 134 Mass. 267. 
 
 .268', 456-^ 
 
 V. Fall River, 147 Mass. 548, 
 
 1 L. R. A. 466... 3833, 456=^ 
 Wave, The. v. Hyer, 2 Paine, 131, 
 
 Blatchf. & H. 235.... 371'' 
 Weatherby v. Meiklejohn, 56 
 
 Wis. 73 402' 
 
 Weathered v. Bray, 7 Ind. 706 .. 247- 
 Webb V. Laird, 59 Vt. 108, 3 New 
 
 Eng. Rep. 586 ...5473, 5494 
 V. Rome, W. &. O. R. Co. 
 
 49 N. Y. 420. 64P, 650, 655'^ 
 ®. Russell, 3T. R. 393 
 
 219, 220* 
 
 Webber v. Eastern R. Co. 2 Met, 
 
 151- 163' 
 
 V. Pere Marquette Boom 
 
 Co. 62 Midi. 626 51 7= 
 
 Weber v. State Harbor Comrs. 85 
 
 U. S. 18 Wall. 57, 21 
 
 L.ed. 798 
 
 3o9^ 388=*, 390' 2. 492* 
 
 V. State Harbor Comrs. 85 
 
 U. S. 18 Wall. 66, 21 
 
 L. ed. 802 493' 
 
 Webster v. Lowell. 142 Mass. 324, 
 
 2 New Eng. Rep. 674. 235« 
 V. Stevens, 5 Duer, 553 
 
 206', 207-' 6, 2083, 2098, 233* 
 WeddelJ t>. Hapner(Ind.) 24 N. E. 
 
 Rep. 368 300- 
 
 Weed V. Ballston Spa, 76 N. Y. 
 
 329.. .,..342', 343= 
 
 V. Keenan, 60 Vt. 74, 6 
 
 New Eng. Rep. 250.. 582' 3 
 Weet v. Brockport, 16 N. Y. 161, 
 
 note....Zll, 326*, 342=, 344' 
 V. Brockport, 16 N. Y. 161, 
 
 167, note SSS* 
 
 V. Brockport, 16 N.Y. 161, 
 
 172, note.. 327* 
 
 Weide v. Thiel, 9 111. App. 223.. 630'5 
 Weightman v. Washington, 66 U. 
 
 S. 1 Black, 39, 17 L. 
 
 ed. 52 340', 344* 
 
 Weill -0. Baker, 39 La. Ann. 1102 
 
 204=, 206=, 2073 
 
 Weis V. Madison, 75 Ind. 241, 39 
 
 Am. Rep. 135 
 
 291=, 312', 325=, 357»'
 
 TABLE OF CASES. 
 
 xcv 
 
 Weisec. Smith, 3 Or. 445. .-405'. SoO^ 
 V. Smith, 3 Or. 445, 448... 377* 
 Weiss V. Oregon I. & S. Co. 13 
 
 Or. 496 355\ 410'. 457^ 
 
 Weituer v. Dehxware Caual Co. 4 
 
 Robt. 234 56G3 
 
 Welch V. Boweii, 103 Ind. 253, 1 
 
 West. Rep. 305 599' 
 
 V. McAllister, 15 Mo. App. 
 
 492 193, 205 
 
 V. Wilcox, 101 Mass. 102.. 242^ 
 V. Wilcox. 101 Mass. 162, 
 104, 100 Am. Dec. 113, 
 
 HO/e, 115, lis 161' 
 
 W^eld V. Hornbv, 7 East, 195. .. 5;322 
 V. Nichols, 17 Pick. 538. . 222'^ 
 Weldon v. Harlem R. Co. 5 Bosw. 
 
 576 6128 
 
 Welfare v. London & B. R. Co. 
 
 L. R. 4Q. B. 633 139^ 
 
 t). London & B. R. Co. L. 
 
 R. 4 Q. B. 698 146« 
 
 Wellbourn v. Davies, 40 Ark. 
 
 87 70' 
 
 Wellcome r. Leeds, 51 Me. 313.. 35' 
 Weller v. McCormick (N. Y.) 8 
 
 L. R. A. 798 110' 
 
 V. McCormick, 47 N. J. L. 
 397, 1 Cent. Rep. 462. 
 
 ..69^ 103', 1234 
 
 V. Snover, 42 N. J. L. 341 
 
 54P, 5498 
 
 Welles V. Bailey, 55 Conn. 292, 4 
 New Eng. Rep. 841 _. 
 
 ..._398«', 399' 
 
 Wellington v. Downer K. O. Co. 
 
 104 Mass. 64., 1072 
 
 Wells V. Head, 4 Car. & P. 568.. 626^ 
 V. Howell, 19 Johns. 385.. 
 
 589*, 591' ^«, 5963, 604' 
 
 V. Sibley (N. Y.) 31 N. Y. 
 
 S. R. 40 115' 
 
 V. Walters, 5 Bush, 351... 595=* 
 Welsh v. Wilson, 101 N. Y. 254, 
 
 2 Cent. Rep. 749.101- «, 250 
 Welter v. St. Paul, 40 Minn. 
 
 460.... 342' 
 
 Welton V. Martin, 7 Mo. 307 79' 
 
 Wendell v. Baxter, 12 Gray, 494. 
 
 ..5663, 5683 
 
 V. Pratt, 12 Allen, 464 256' 
 
 Wenzlick v. McCotter, 87 N. Y. 
 
 122. 545, 107'» 
 
 Werfelman v. Manhattan R. Co. 
 (C. P.) 32 N. Y. S. R. 
 
 682 180^ 
 
 Wesson v. Washburn Iron Co. 13 
 
 Allen, 95 2913,474', 478« 
 
 V. Washburn Iron Co. 13 
 
 Allen, 95, 101 75-', 4743 
 
 West Cumberland Iron & S. Co. 
 V. Kenyon, L. R. 6 Ch. 
 Div. 773, reversed on 
 app. L. R. 11 Ch. Div. 
 
 782 270» 
 
 v. Kenyon, L. R. 11 Ch. 
 
 Div. 782 148'. 280' 
 
 Western College v. Cleveland, 12 
 
 Ohio St. 377 342' 
 
 Western S. F. Soc. v. Philadel- 
 phia, 31 Pa. 185, 189. 338* 
 Western Union Telcg. Co. v. Ey- 
 ser. 91 U. S. 495, 23 
 
 L. ed. 377, note 252' 
 
 V. He\vett{D. C.)4 Mackey, 
 
 424, 2 Cent. Rep. 695. 73* 
 V. New York, 38 Fed. Rep. 
 
 552, 3 L. R. A 449... 983 
 
 V. Quinn, 56 111. 319 612'^ 
 
 V. Rich, 19 Kan. 517, 27 
 
 Am. Rep. 159.. 97» 
 
 V. Williams (Va.) 8 L. R. 
 
 A. 429 25P 
 
 Westfall V. Van Anker, 12 Johns. 
 
 425. -.4985, 499- 
 
 West Mahanoy Twp. v. Watson, 
 
 116 Pa. 344 1063 
 
 Weston V. Arnold, L. R. 8 Ch. 
 
 App.1090 210 
 
 V. Sampson, 8 Cush. 347.. 
 
 ..-.495', 510', 536^ 
 
 V. Tailors of Potterow, 14 
 
 F. C. 1232 4P, 623, 2.562 
 
 West Roxbury v. Stoddard, 7 Al- 
 len, 158 510' 
 
 V. Stoddard, 7 Allen, 158, 
 
 169 341' 
 
 V. Stoddard, 7 Allen, 158, 
 
 171- 3743, 492* 
 
 V. Stoddard, 7 Allen, 167.. 512' 
 V. Stoddard, 7 Allen, 169- . 455- 
 Wethersfield ». Humphrey, 20 
 
 Conn. 218 374* 
 
 Wetmore v. Fiske, 15 R. I. 366, 4 
 
 New Eng. Rep. 794.. 259» 
 
 V. Story, 22 Barb. 414 728 
 
 Wettor V. Dunk, 4 Fost. & F. 298 
 
 27', 73» 
 
 Weyman t\ Ringold, 1 Bradf. 41 223 
 
 V. Ringold, 1 Bradf. 61 204' 
 
 Whalen «. Gloucester, 4 Hun, 24 50' 
 V. Gloucester, 6 Thomp. & 
 
 C. 135, 4 Hun, 24.... 46' 
 Whaley©. Jarrett, 69 Wis. 613.. 245* 
 Whalley v. Thompson, 1 Bos. & 
 
 P. 374, note 419^ 
 
 Wharf Ca.se, The, 3 Bland, Ch. 
 
 361 564* 
 
 Whatley v. .Murrell, 1 Strobh. L. 
 
 389 656»
 
 XCVl 
 
 TABLE OF CASES. 
 
 Whcatley v. Baugh, 25 Pa. 528.. 
 
 12-, 280, 28P, 286 
 
 V. Chrisman, 24 Pa. 298... 
 
 288«, 421^, 460' 
 
 V. Chrisman, 24 Pa. 303.425, 426» 
 Wheeldon v. Burrows, L. R. 12 
 
 Oh. Div. 31, 49- 174'' 
 
 V. Burrows, 37 Week. Rep. 
 
 165. - -- 169' 
 
 Wheeler®. Bedford, 54 Conn. 246, 
 
 2 New Eng. Rep. 831. 77* 
 V. Brant, 23 Barb. 324.... 619' ^s 
 
 V. Clark, 58 N. Y. 267 176* 
 
 V. Northern Colo. Irrigation 
 
 Co. 10 Colo. 582 4473 
 
 V. Plymouth, 116 Ind. 158 310^ 
 «. Reynolds, 66 N. Y. 227 184^ 
 V. Townshend, 42 Vt. 15.. 637' 
 V. Westport, 30 Wis, 393.. 125' 
 V. Wheeler, 33 Me. 347... 201» 
 V. Worcester, 10 Allen, 591 SSI* 
 Whetstone v. Bowser, 29 Pa. 59. 284' 
 Whisler v. Wilkinson, 22 Wis. 572 
 
 4035, 405', 412' 
 
 White V. Bass, 7 Hurl. & N. 732. 174^ 
 V. Bond County, 58 111. 297 339=* 
 V. Chapin, 12 Allen, 516-299% 351 
 ». Chapin, 12 Allen, 516,520 348^ 
 «. Charleston, 2 Hill (S. C.) 
 
 571... -- 3893 
 
 V. Crawford, 10 Mass. 183. 
 
 - 571', 577' 
 
 V. France, L. R. 2 C. P. 
 
 Div. 308-20^ 1503, 567^, 568* 
 V. Harworth, 21 Mo. App. 
 
 439, 4 West. Rep. 789 602' 
 V. Hindley Board of Health, 
 
 L. R. 10 Q. B. 219.--. 338^ 
 t. Jameson, L. R. 18 Eq. 
 
 303 149, 1493 
 
 V. Montgomery, 58 Ga. 204 256-2 
 V. Osburn, 21 Wend. 72--. 20P 
 V. Phillips, 15 C. B. N. S. 
 
 245 -- 566« 
 
 V. Phillipston, 10 Met. 108, 
 
 110--.- - 339* 
 
 «. Petty, 57 Conn. 576-531', 537^ 
 
 V. Scott, 4 Barb. 56 594^ 
 
 «. Sheldon (Sup. Ct.)28N. 
 
 Y. S. R. 475 - 
 
 .-263% 296*, 300% 303^ 469* 
 V. South Shore R. Co. 6 
 
 Cush. 413 - 532^ 
 
 V. Storms, 21 Mo. App. 388, 
 
 4 West. Rep. 739 586* 
 
 V. Tallman, 26 N. J. L. 67 600^ 
 V. WinnisimmetCo.7Cush. 
 
 155 - 488- ^ 490' 
 
 Whitehouse v. Fellowes, 30 L. J. 
 
 N. S. C. P. 305 3703 
 
 White River Tump. Co. v. Ver- 
 mont C. R. Co. 21 Vt. 
 590 89' 
 
 White's Bank v. Nichols, 64 N. 
 
 Y. 65 571', 575' 
 
 Whitmore?). Bownan, 4 G.Greene, 
 
 148 -- 488* 
 
 Whitney v. Gauche, 11 La. Ann. 
 
 443.--. 375« 
 
 «. Huntington, 37 Minn. 197 269' 
 v. Sanders, 3 Pitts. L. .J. 226 302' 
 V. Taylor, 54 Barb. 536... 634« 
 V. Union R. Co. 11 Gray, 
 
 359 -.--181', 187-. 202^ 329' 
 9). Wheeler Cotton Mills, 
 151 Mass. 396, 7 L. R. 
 
 A. 613-- ---- 8', 
 
 423* ^ 424', 425\ 544*. 548^ 
 Whitsett V. Union D. & R. Co. 10 
 
 Colo. 243 79^ 
 
 Whittier v. Chicago, M. & St. P. 
 
 R. Co. 26 Minn. 484.. 147' 
 V. Cocheco Mfg. Co. 9 N. 
 
 H. 454..- 262^ 287^ 
 
 Wickersham v. Orr, 9 Iowa, 260. 182' 
 Wickes V. Clutterbuck, 2 Bing. 
 
 483..- 528'^ 
 
 Wiedekind v. Tuolumne Countv 
 
 Water Co. 83 Cal. 198 440' 
 Wiggins V. Boddinffton, 3 Car. & 
 
 P. 544.^- 126^ 47o- 
 
 V. McCleary, 39 N. Y. 346. 580^ 
 Wiggins Ferry Co. v. East St. 
 
 Louis, 102 111. 560---. 481* 
 ■p. Ohio & M. R. Co. 94 111. 
 
 95 221' 
 
 Wilbur «. Hubbard ^35 Barb. 303 595^ 
 Wild V. Skinner, 23 Pick. 255--- 603^ 
 Wilder v. Maine Cent. R. Co. 65 
 
 Me. 332 664' 
 
 V. St. Paul, 13 Minn. 208- . 571' 
 V. Wheeldon, 56 Vt. 344 .- 
 
 -..-573'-, 582' 
 
 V. W'iider, 38 Vt. 678.592", 593- 
 Wiley D. Norfolk S. R. Co. 96 N. 
 
 C. 408 - 234^ 
 
 V. Slater, 22 Barb. 506 .... 619^ 
 Wilhelm «. Burleyson, 106 N. C. 
 
 381- 436'2 
 
 Wilhite V. Speakman, 79 Ala. 400 
 
 593', 596- 
 
 Wilkinson v. Detroit S. & S. 
 Works, 73 Mich. 405.. 
 
 10', 27-, 102% 104^ 
 
 V. Fairrie, 1 Hurlst. & C. 
 
 633 - 19' 
 
 V. Fairrie, 32 L. J. N. S. 
 Exch. 73, 1 Hurl. & C. 
 
 633 - 23' 
 
 V. Parrott, 32 Cal. 103 .... 621*
 
 TABLE OF CASES. 
 
 XCVIl 
 
 Willamette Iron Bridge Co. v. 
 
 Hatch, 125 U. S. 1, 31 
 
 L. ed. 629 464« 
 
 Willard v. Calhoun, 70 Iowa, 
 
 650 245' 
 
 V. Cambridge, 3 Allen, 574 475' 
 V. Forsvthe, 2 Mich. N. P. 
 
 190 480' 
 
 T. Mathcsus, 7 Colo. 76 594^ 
 
 Willey V. Hunter, 57 Vt. 479 .... 582' 
 V. Norfolk S. R. Co. 96 N. 
 
 C. 408 578\ 5815 3 
 
 William Cox, The, 9 Fed. Rep. 
 
 672 369' 
 
 Wm. H. Briusfield, The, 39 Fed. 
 
 Reo. 215.... --- 569* 
 
 William Murtagh, The, 17 Fed. 
 
 Rep. 260. 369'^ 
 
 Williams v. Blackwall, 2 Hurl. & 
 
 C. 33 533^ 534 
 
 V. City Electric St. R. Co. 
 
 41 Fed. Rep. 556 25P 
 
 V. Dixon, 65 N. C. 416 628^ 
 
 V. Great Western R. Co. L. 
 
 R. 9 Exch. 157, 43 L. 
 
 J. N. S. Exch. 105... 2P 
 T. Ingram, 21 Tex. 300 ... 634^ 
 t\ Jersey, Craig & Ph. 91. 183« 
 V. Mich. Cent. R. Co. 2 
 
 Mich. 259 591^ 
 
 T. Moray, 74 Ind. 25 
 
 61 8S 619% 620«, 6303 
 
 V. Moray, 74 Ind. 25, 29-. 604^ 
 V. Nelson, 23 Pick. 141.... 
 
 263^ 578«, 5815 
 
 V. Nelson, 23 Pick. 141, 147 571' 
 V. New York C. R. Co. 16 
 
 N. Y. 97 728 
 
 v. New York C. R. Co. 16 
 
 N. Y. 97, 18 Barb. 222 90' 
 p. Sa£ford,7Barb. 309.... 124-* 
 V. The William Cox. 3 Fed. 
 
 Rep. 645. 369' 
 
 ?7. Tripp, 11 R. I. 447 748 
 
 V. Turner, 7 Ga. 348 480^ 
 
 V. Water Co. 134 Mass. 406 255'^ 
 V. Wilcox, 8 Ad. & El. 314, 
 
 333 3773 
 
 Williamsburg Boom Co. v. Smith, 
 
 84 Kv. 372. 389', 556^ 
 
 Williamson v. Barrett, 51 U. S. 13 
 
 How. 101, 14L. ed. 68 637' 
 V. Brown, 15 N. Y. 354, 362 ^2' 
 V. Carroll, 16 N. J. L. 2171 624^ 
 V. Lock's Creek Canal Co. 
 
 76 N. C. 478 299' 
 
 Willis V. Erie Teleg. & Teleph. 
 
 Co. 37 Minn. 347 ! 
 
 96^ 97S 251-^: 
 
 V. Legris, 45 111. 289. 600^ I 
 
 Willoughby v. Horridge. 12 C. B. 
 
 742 151', 490» 
 
 V. Horridge, 12 C. B. 742, 
 
 749.."". 48^' 
 
 V. Horridge, 16 Eug. L. & 
 
 Eq. 437. 486» 
 
 V. Lawrence, 116 111. 11, 3 
 
 West. Rep. 472 ..176% 183' 
 Willson V. Black Bird Creek Marsh 
 
 Co. 27 U.S. 2 Pet. 245, 
 
 7 L. ed. 412 464' 
 
 Willy V. MuUedy, 78 N. Y. 310.. 
 
 106'. 662'% 663» 
 
 Wilmarth v. Woodcock, 58 Mich. 
 
 482, 66 Mich. 331, 9 
 
 West. Rep. 895 476^ 
 
 Wilson V. Atlanta, 60 Ga. 473 ... 332' 
 ». Charlestown,8Allen,137 129' 
 V. Forbes, 2 Dev. L 30... 514'* 
 V. Forbes, 2 Dev. L. 30-36 380^ 
 v. Great Southern Teleph. 
 
 & Teleg. Co. 41 La. 
 
 Ann. 1041 ....7', 127% 153» 
 V. Hamilton, 4 Ohio St. 722 488* 
 V. Hart, 2 Hem. & M. 551, 
 
 L. R. 1 Ch. App. 463- 229 
 T. Lynn, 119 Mass. 174.89% 458^ 
 
 V. Marsh, 34 Vt. 352 311-* 
 
 V. New Bedford, 108 Mass. 
 
 261-257% 271,271', 288% 454'* 
 V. New York, 1 Denio, 595 
 
 305-' % 321% 330* 
 
 e. New York. 1 Denio, 598 317 
 V. New York, 1 Denio, 601 330' 
 
 V. Sexon, 27 Iowa, 15 473 
 
 V. Shulkin, 6 Jones, L. 375. '488^ 
 
 V. State, 87 Ala. 117. 166» 
 
 V. Trafalgar & B. C. Gr. 
 
 Road Co. 83 Ind. 326, 
 
 93 Ind. 2.S7 128* 
 
 V. Vaughn, 40 Iowa, 179.. 427» 
 Wilts & B. Canal Co. v. Swindon 
 
 Waterworks Co. L. R. 
 
 9 Ch. 451 453» 
 
 V. Swindon Waterworks 
 
 Co. L. R. 9 Ch. 457 .. 441^ 
 Wiltshire v. Sidford, 1 Man. & 
 
 Ry. 404 209*, 213 
 
 Winbigler v. Los Angeles, 45 Cal. 
 
 36 341* 
 
 Winchester v. Capron, 63 N. H. 
 
 605, 2 New Eng. Rep. 
 
 543. 91* 
 
 Windham v. Portland, 4 Mass. 
 
 384, 389 341* 
 
 Winn V. Abeles, 35 Kan. 85.199', 200' 
 V. Rutland, 52 Vt. 481.... 
 
 291*%304%353» 
 
 Winnetka v. Prouty, 107 111. 
 
 225 580» 
 
 G
 
 XCVlll 
 
 TABLE OF CASES. 
 
 Winnipiseoeree Lake Co. «. Young, 
 
 40 N. H. 420- 4273 
 
 Winnsboro v. Smart, 11 Rich. L. 
 
 551 152^ 
 
 Winston «. Johnson, 43 Minn. '6^.% 
 
 .1503, i(3q:3_ 1612^ i(;gi_ 1754 
 
 Winter «. Brockweli, 8 East. 308 187- 
 V. Montgomery. 83 Ala. 589 99^ ^ 
 Winterbottora ». Derby, L. R. 2 
 
 Exch. 316 12(5*, 475^ 
 
 Winthrop 'o. Fairbanks, 41 Me. 
 
 307 184= 
 
 Wisconsin River Imp. Co. «. 
 
 Lyons, 30 Wis. 61, 66. 405' 
 Wisconsin River Log Driv. Asso. 
 V. Comstock Lumber 
 Co. 72 Wis. 464, 1 L. 
 
 R. A. 717 406', 558' 
 
 Wiseman «. Lucksinger, 84 N. 
 
 Y. 31 182', 1848 
 
 Withers «. Purchase, 60 L. T. N. 
 S. 819, 40 Alb. L. J. 
 
 214 40P, 4109, 4603 461« 
 
 Wixson t. Devine, 80 Cal. 385... 451^ 
 Woburn v. Henshaw, 101 Mass. 
 
 193.... 114' 
 
 Wolf V. Kil Patrick, 101 N.Y. 146, 
 
 2 Cent. Rep, 81 
 
 44, 52', 61'«, 110 
 
 «. St. Louis Independent 
 WaterCo. lOCal. 541. 
 
 . 432', 435« 
 
 ©. St. Louis Independent 
 
 Water Co. 10 Cal. 544. 481* 
 Wolfe v. Frost, 4 Sandf. Ch. 72, 
 
 7N. Y. Ch. L. ed. 1027 185^ 
 V. Frost, 4 Sandf. Ch. 72, 
 
 note 204' 
 
 Wonson v. Wonsou, 14 Allen, 71 380' 
 V. Wonson, 14 Allen, 85.. 360' 
 
 Wood ». Appal, 63 Pa. 221 378^ 
 
 v. Independent School Dist. 
 
 44 Iowa, 27 233, 29 
 
 t). La Rue, 9 Mich. 158 616' 
 
 v. Rice, 24 Mich. 423 405' 
 
 «. SutcliflEe, 2 Sim. N. S. 
 163, 8 Eng. L. & Eq. 
 
 217. 291^ 
 
 •0. Sutcliffe, 16 Jur. 75.... 287'' 
 «. Truckee Turnpike Co. 
 
 24 Cal. 474 485 
 
 «. Waud, 3 Exch. 748.... 
 
 2872, 288*, 296' 
 
 Woodbury o.Parsh]ey,7 N.H. 287 182* 
 «. Robbins, 10 Cush. 520.. 635' 
 ®. Short, 17 Vt. 387... 397*. 3983 
 Woodcock ». Calais, 66 Me. 234 
 
 32P, 3523 
 
 V. Calais, 66 Me. 235 
 
 3343, 335', 336', 3413 
 
 Wooden v. Austin, 51 Barb. 9... 256* 
 Woodin «j. Wentworth, 57 Mich. 
 
 278 410', 545', 548« 
 
 Woodman v. Pitman, 79 Me. 456 
 4 New Eng. Rep. 699. 
 
 260, 373S 376* 
 
 ». Tufts, 9 N. H. 88 55 
 
 Woodraum «. Clay, 38 Fed. Rep. 
 
 897. 638^ 
 
 Woods «. Lloyd (Pa.) 16 Atl. Rep. 
 
 43 .■ 122^ 
 
 Woodward «. Fox, 2 Vent. 188.. 3999 
 V. Worcester, 121 Mass. 245 
 
 2922, 3265, 45(j3 
 
 Woodyear «. Schaefer, 57 I\Id. 1, 
 
 40 Am. Rep. 419.. 288', 291' 
 Woodyer v. Hadden, 5 Taunt. 137 184* 
 Woolever v. Stewart, 36 Ohio St. 
 
 146 499« 
 
 Wooley -D. Grand St. & N. R. Co. 
 
 83 N. Y. 121. 2582 
 
 Woolf V. Beard, 8 Car. & P. 378. 35' 
 "O. Chalker, 31 Conn. 131.. 
 
 587' 
 
 616'. 6I93, 620«, 6253, 6813 
 ■0. Chalker, 31 Conn. 130.. 
 
 621', 6303 
 
 Wool man v. Garringer, 1 Mont. 
 
 535 4458 
 
 Woram «. Noble, 41 Hun, 398.. 58, 6I2 
 Worcester «. Western R. Corp. 4 
 
 Met. 564, 569 265* 
 
 Worden «. New Bedford, 131 
 
 Mass. 23, 24 3453 ^ 
 
 Works®. Junction R. Co. 5 Mc- 
 Lean, 425 79' 
 
 Worley v. Columbia, 88 Mo. 106, 
 
 4 West. Rep. 342 8372 3 
 
 Worrall «. Rhoads, 2 Whart. 
 
 427 235= 
 
 Worster «. Forty Second St. & G. 
 St. Ferry Co. 50 N. Y. 
 
 203. 252* 
 
 Worth «. Gilling, L. R. 2 C. P. 1 
 
 586», 605' «. 606' 9, 609' 
 
 ?j. Gilling, L. R. 2 C. P. 8. 629' 
 Worthen v. Love, 60 Vt. 285, 6 
 New Eng. Rep. 655.. 
 
 615*, 617*, 6303, 6311 
 
 Worthington «. Parker, 11 Daly, 
 
 545 - 256^ 
 
 Wright ». Chicago & N. W. K. 
 
 Co. 27 111. App. 200.. 655* 
 ©. Compton, 53 Ind. 337.. 39- 
 «. Freeman, 5 Har. & J. 
 
 467, 478 578^ 
 
 V. Freeman,5Har. &J. 477 5803 
 V. Maiden R. Co. 4 Allen, 
 
 283 127* 
 
 «. Moore, 88 Ala. 598 262*
 
 TARLE OF CASES. 
 
 XCIX 
 
 Wrights. Mill vaney (Wis.) 9 L.R. 
 
 A. 807 539, 589' 
 
 V. Ramscot, 1 Saund. 83.. 628' 
 
 V. Shorter, 56 Ga. 73 4S4' 
 
 V. Templet on, 132 Mass. 49 127' 
 Wyatt V. Harrison, 3 Barn. & Ad. 
 
 871 193 
 
 Wyckoff V. Queens Co. Ferry Co. 
 
 52 K Y. 83 488«, 490- 
 
 Wynkoop v. Burger, 12 Johns. 223 158' 
 
 Yankee Jim's Union Water Co. 
 
 V. Crary, 25 Cal. 509.. 44fi2 
 
 Yates «. Judd, 18' Wis. 118 3773 
 
 V. Milwaukee, 77 U. S. 10 
 
 Wall. 497, 19 L. ed. 984 
 
 463^ 55954^ 563« 
 
 V. Warrenton, 84 Va. 337. 
 
 70', 714 
 
 Yeakle ». Nace,2 Wiiart.133.5803 *, 581^ 
 
 Yerkesu. Sabin, 97 Ind. 142 488' 
 
 Yolo Co. V. Sacramento, 36 Cal. 
 
 193 792, 468^ 
 
 Young V. , 1 Ld. Rnvm. 725. 124* 
 
 T. Ilarvev, 16 Ind." 314.117, 59'^' 
 
 V. Ilichins, 6 Q. B. (i06... 500' 
 V. Kansas Citv,27 Mo. App. 
 
 101 ". 807' 
 
 «. Leedon, 67 Pa. 351 302' 
 
 V. Wilson, 27 N. Y. 351.. 242' 
 
 Zabriski v. Jersey City & B. R. 
 
 Co. 13 N. J. Eq. 314. 76 
 
 Zearing v. Raber, 74 IW. 409 184^ 
 
 Zell V. First Universalist Soc. 119 
 
 Pa. 390, 13 Cent. Rep. 
 
 148 
 
 171 ^ 174', 574«, 575\ 579* 
 Zigefoose v. Zigefoose, 69 Iowa, 
 
 391 ..1768, 234-« 
 
 Zoebisch v. Tarbell, 10 Allen, 385 
 
 19', 24», 25^ 568* 
 
 V. Tarbell.lOAllen, 385. 87 
 
 Am. Dec. 603, etseq., 
 
 note 19' 
 
 V. Tarbell, 87 Am. Dec. 666, 
 
 note 28'
 
 IMPOSED DUTIES, PERSO:S^AL. 
 
 PART I. 
 
 LAND, DUTIES RESPECTING AND RIGHTS THEREIN. 
 
 CHAPTER I. 
 
 ORIGIN AND NATURE OF IMPOSED PERSONAL DUTIES. 
 
 Sec. 1. Imposed at Common Laiv and by Statute. 
 
 Sec. 2. The Permanence and Purpose of tlie Common Laio. 
 
 •Sec. 3. Absolute Duties. 
 
 Sectioi^ 1.— Imposed at Coimnon Law and hy 
 
 Statute. 
 
 ITpoii each person, in eyeiy position he occupies, peculiar duties 
 are imposed, each demanding its discharge with an em])hasis 
 accentuated or modified by the attendant circumstances. The 
 individual, independent of social relations, has a natural right in 
 his person and property. Of this right he cannot justly be de- 
 prived without his consent. He is said to be free. And yet this 
 is only absolutely true in so far as he is able to bring his animal 
 nature, with its passions and appetites, and the influence of his 
 surroundings upon such nature, in subjection to his reason, and 
 his sense of moral duty and right. 
 
 It is equally clear that, as a member of society, the individual 
 1
 
 2 IMPOSED DUTIES, PEKSONAL. [Part 1. 
 
 can onlj be said to be free to the extent that every other mem- 
 ber of the social order is withheld from trespassing against his 
 person or invading his right of property. To the extent that 
 others may encroach upon his rights, his liberty is restrained. 
 
 By the law of nature he has the unquestioned right to protect 
 his person and his property. If necessary he may exercise this 
 right to the extent of restraining the personal liberty of one who 
 attacks his rights, or, if the emergency serve, in defense of his 
 life he may take the life of his assailant. Self-preservation is 
 fully recognized as the first law of nature. But as a member 
 of a community it would be impossible to attempt the personal 
 maintenance of individual rights, and the eifort would be destruc- 
 tive of all organized society. Inasmuch as the danger to his right 
 comes from members of the community, he has the right to de- 
 mand that such members be restrained from such trespass, and he 
 must also submit himself to restraint. 
 
 In virtue of his membership of society, every man is held there- 
 fore as committing his natural right to protect his ownership, pos- 
 session, control and disposal of property to the care of the 
 organized community of which he forms a part. He intrusts 
 this community with the exercise of his individual right to pro- 
 tect his property. His power to make such a disposition of his 
 individual right cannot be questioned. 
 
 Equally clear is his power to transfer the care of his personal 
 safety, with his right to personally restrain or disable those who 
 would imperil it. The organized community, thus receiving the 
 individual right of each member, is clothed with the surrendered 
 individual power of all for the common protection of property, 
 liberty and life. Each of these is rendered secure only by the 
 restraint of each member of the community from doing injury ta 
 another. The rules imposing these restraints upon the exercise 
 of one's i-ights, where they would invade the right of another, 
 have crystallized into what is called the "common law," in which 
 in terms, or in the application of its principles, by inference, will 
 be found the duties imposed upon each member of the connnunitj 
 in the exercise of his rights, except as statutes have been passed 
 from time to time, declaratory of, or imposing duties in addition 
 to, those arising at common law.
 
 Chap, i.] PERMANENCE AND PURPOSE OF COMMON LAW. 3 
 
 Section" '2.—TJie Periuctnence and Purpose of the 
 Common Law. 
 
 Tliis common law is a system of principles, always in livin^^, if 
 not in acting, force. It is therefore nnchangeable. It cannot be 
 expanded to cover new conditions or circumstances, nor contracted 
 to permit what was once against its prohibitions to escape its con- 
 demnation. The princij^les of the common law have for their 
 purpose the preservation of social order and of private rights. 
 Precedents serve only to illustrate the application of certain prin- 
 ciples of the common law to certain existing facts. It may be 
 true that changed conditions of society and altered circumstances 
 may thereafter prevent the application of the particular principles 
 to the same state of facts from producing the same conclusion. 
 But the common law has been neither expanded, contracted nor 
 changed ; but the facts which formerly tended to the prejudice of 
 good order or of private rights do not now have this effect. A 
 precedent is valuable to illustrate a principle, but it is not itself a 
 principle, nor does it form any part of the common law. The 
 precedent by reason of changed conditions may cease to illustrate 
 the principle, and at that instant it ceases to be of value. But 
 the principle, which is the law, cannot perish with the precedent, 
 and its proper application to the changed conditions will again 
 establish the law and create a new precedent. Customs and 
 usages — which are but examples of the application of principles 
 to certain supposed conditions — are modified or expanded, as the 
 experience of mankind proves the application of a particular prin- 
 ciple to facts to have been erroneous or imperfect ; or that the 
 supposed conditions did not exist, or did not tend to produce the 
 results upon the public or upon private individuals anticipated. 
 Nature's law is evolution — continuous progressive change accord- 
 ing to certain rules and by means of resident forces. This law, 
 acting in human progress, makes mind one of its factors, and 
 when, by the use of reason, a line of conduct, theretofore regarded 
 as harmless, is discovered to be prejudicial to the public, it comes 
 at once within the principles of the common law, and is pro- 
 hibited. 
 
 This unwritten law, as distinguished from the statutes,* has, at va- 
 
 ^Lety V. McCartee, 31 U. S. 6 Pet. 102, 8 L. ed. 334.
 
 4 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 rious stages of the application of its principles to existing conditions 
 of society, been called the " perfection of human reason." Its pur- 
 pose is to regulate the conduct of man in his social relations and 
 intercourse with his fellows, and to define his rights, and the du- 
 ties which result from his attempt to exercise his birthrights, 
 when and where they may trench upon the privileges of another. 
 The common law rests upon principles of justice and recognizes 
 present existing common rights ; for courts are bound by such 
 precedents only of the common law and its statutory affinities as 
 concern the existing conditions and circumstances.' 
 
 Man as a reasonable being must submit to the laws of nature. 
 As a moral being he must obey the moral law. The common law 
 is adapted to the general regulation of the line of conduct of in- 
 dividuals as reasonable and moral members of society, and its 
 principles, if accurately attended to, will be found to all point to 
 that end. 
 
 Section- Z.— Absolute Duties. 
 
 Puffendorf states,'' as among the series of absolute duties, or such 
 as oblige all men antecedent to any human institutions, as not only 
 the widest of all in its extent, but comprehending all men on the 
 bare account of their being men, the duty " that no man hurt an- 
 other, and that in case of any hurt or damage done by him, he fail 
 not to make reparation." 
 
 Looked upon purely as a negative absence from acting, except 
 as it restrains passions, he treats it as the most necessary of human 
 duties, inasmuch as the life of society cannot possibly be main- 
 tained without it ; " for, suppose a man do me no good, and not so 
 much as to transact with me in the common offices of life, yet pro- 
 vided he do me no harm, I can live with him under some tolerable 
 comfort and quiet. ... It is beyond doubt that he who offers dam- 
 age to another out of an evil design is bound to make reparation, 
 and that to the full value of the wrong and of all the consequences 
 flowing from it ; but those likewise stand responsible who commit 
 an act of trespass, though not designedly, yet by such a piece of neg- 
 lect as they might easily have avoided. For it is no inconsiderable 
 part of social duty to manage our conversation with such caution 
 
 KState V. Williams (Del. Jan. 15, 1890), 18 Atl. Rep. 949. 
 ^Puffendorf, Law of Nature, bk. III. chap. 1, §§ 1, 6.
 
 Chap. I.] ABSOLUTE DUTIES, 5 
 
 and prudence that it do not become terrible or pernicious to others, 
 and men under some circumstances and relations are obliged to 
 more exact and watchful diligence. Indeed, the slightest default 
 on this point is sufficient to impose a necessity of reparation, 
 unless under one of these exceptions : either that the nature of the 
 business was such as disdained a care more nice and scrupulous ; 
 or that the party who receives the wrong is no less in fault than, 
 he who gives it ; or, lastly, that some perturbation of mind in the 
 person, or some extraordinary circumstances in the affair, leaves 
 no room for accurate and considerate circumspection, as" (impul- 
 sive action in imminent peril") " suppose a soldier in the heat 
 of an engagement should hurt his next man with his arms whilst 
 he brandishes and employs them against the enemy." 
 
 In illustration of the first exception, the rule may be referred 
 to, that in emergencies, when human life is in jeopardy, and a 
 chance, even if it be a slight one, presents itself to save that life, 
 great risks may be incurred, and the law in favor of human life 
 and for the encouragement of human heroism refuses to put the 
 brand of negligence upon a personal sacrifice for such a purpose.* 
 When a young girl steps upon a railroad track in front of a 
 train, which is nearly half a mile away, to compel small children, 
 playing thereon, to get out of the way of the train, she is not 
 guilty of negligence in so doing.^ Certainly no action could be main- 
 tained on behalf of the rescued children, whose improper position 
 imperiled them, on the ground that the removal was accomjDlished 
 with less gentle consideration than might have been expected under 
 other circumstances. And, in further illustration of the third ex- 
 ception, it is clear that one whose j)erson obstructed an effort to 
 save life or property could not recover for the use of reasonable 
 violence in removing him. The same general principle justifies 
 the destruction of buildings to prevent the spread of fire\ 
 
 ^SouthWestVa. Imp. Co. v. S?nUh(Va.. Aug. 23, 1888), 7 S. E. Rep. 365. 
 
 ^LinneJian v. Lampson, 126 Mass. 508; Clark v. Farmers Shoe & G. Co. 
 16 Mo. App. 463; Eckert v. Long Island R. Co. 43 N. Y. 503; Peyton v. 
 Texas & P. R. Co. 41 La. Ann. 861; Pigott v. Lilly, 55 Mich. 150; Dona- 
 hoe V. Wabash, St. L. & P. R. Co. 83 Mo. 560; Cdrroll v. Minne.'o'jt Val- 
 ley R. Go. 14 Minn. 57; Pennsylvania Co. v. Roney, 89 Ind. 453; Central 
 R. Co. V. Crosby, 74 Ga. 737. 
 
 ^Spooner v. Delaware, L. & W. R. Go. 115 N. Y. 22. 
 
 ^Surroco v. Oeary, 3 Cal. 69.
 
 6 IMPOSED DUTIES, PERSONAL. [Fart I. 
 
 At the common law everyone had the right to destroy real and 
 personal property, in cases of actual necessity, to prevent the 
 spreading of a fire, and there was no responsibility on the part of 
 such destroyers and no remedy for the owner. In the Case 
 of the Prerogative^ 12 Coke, 13, it is said: "For the Com- 
 monwealth a man shall suffer damages ; as, for saving a city or 
 town a house shall be plucked down if the next one be on fire ; 
 and a thing for the Commonwealth every man may do without 
 being liable to an action." There are many other cases besides 
 that of fire, some of them involving the destruction of life itself, 
 where the same rule is applied.* " The rights of necessity are a 
 part of the law." In these cases the common law adopts the prin- 
 ciples of the natural law and finds the right and the justification 
 in the same imperative necessity.' 
 
 It has also been said that the act is not that of a sovereign ex- 
 ercising the right of eminent domain, but an act of private neces- 
 sity, done for private advantage,, like that which authorizes the 
 appropriation of a plank by one, which will not sustain two in the 
 water.* Upon the same principle goods may be thrown over to 
 save the vessel. 
 
 ^Res-publica v. Sparhmck, 1 U. S. 1 Dall. 357, 362, 1 L. ed. 174, 176. 
 See also Mouse's Case, 12 Coke, 63; 15 Vin. Abr. title Necessity, A, 
 § 8; British Cast Plate Mfrs. Go. v. Meredeth, 4 T. R. 794; Am. Print 
 Works V. Lawrence, 21 N. J. L. 248, 23 N. J. L. 590; Stone v. New York, 
 25 AVend. 173; Russell v. New York, 2 Deiiio, 461. 
 
 "Burlam. 145, §g 6, 159, chap. 5, §§ 24-29; Pufiendorf, bk. II. chap. 6; 
 Bowditch V. 'Boston, 101 U. S. 16, 25 L. ed. 980. 
 
 ^Surroco v. Oeary, 3 Cal. 69; Respuhlica v. Sparhawk, 1 U. S. 1 Dall. 
 359, 1 L. ed. 175; Am. Print Works v. Lawrence, 21 N. J. L. 257; New 
 York V. Lord, 17 Wend. 290, 18 Wend. 125; Stone v. New York, 25 
 Wend. 174.
 
 CHAPTER II. 
 
 NEGLIGENCE IN THE EXERCISE OF RIGHTS. 
 
 Sec. 4. Duties Attendant upon the Possession of Eights and the 
 Ownership of Property. 
 
 a. Nuisances. 
 
 b. Intention to Cause Injury. 
 
 c. Proof of Intention to Injure not Always Required. 
 
 d. Intention Sometimes Essential to he Shown. 
 
 e. Placing Spring Guns or Traps or Keeping a Ferocious 
 
 Animal upon One's Land. 
 
 Section 4. — Duties Attendant upon the Possession 
 of Rights and the Ownership of I^'operty. 
 
 The principle of sic utere tuo ut alienum non Icedas^ stated 
 more fully, runs thus : '•'• Prohibiter ne quis facit in suo, quod 
 nocere possit in alieno, et sic utere tuo ut alienum, non IcedasP 
 This principle is necessarily a limitation of the use a man may 
 make of his own property ; under it he is not to make any use he 
 pleases of it, but he is so only to use it as not in the unreasonable 
 use to injure another. Therefore a landowner cannot perform 
 any work on his land which may have the effect of depriving his 
 neighbor of the enjoyment of his own land, or which may dam- 
 age the latter.' 
 
 If one has on his own premises that which is dangerous, or a 
 substance (whether above or under the ground) that he is con- 
 stantly using which is liable to escape and injure his neighbor, or 
 that which his neighbor has the right to use, it has been held that 
 he must answer for the consequences." 
 
 Although an upper riparian proprietor cannot be required to hold 
 back water for the benefit of the owners below him, yet he cannot 
 unreasonably interfere with the natural flow of the stream, and 
 send down a great deal more than the usual quantity at times, 
 
 '^Wihonv. Great SoutJiern TelepJi. & Teleg. Co. 41 La. Ann. 1041, 
 ^Kinnaird v. Standard Oil Co. (Ky. Jan. 25, 1890) 7 L. R. A. 451; Ot- 
 tawa Oas-Light C. Co. v. Oraham, 28 111. 74; Ballard v. Tomlinson, L. R. 
 29 Ch. Div. 115; Rylands v. Fletcher, L. R. 3 H. L. 330.
 
 8 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 and by so doing leave none for a long time afterwards to maintain 
 the stream in its usual condition.' 
 
 Pollution of the waters, and injury to the flow of the current, 
 of a creek by discharging into it the manure and offal from ex- 
 tensive cattle-feeding barns, in such manner and degree as to 
 injure the stream for husbandry, and destroy it for watering live- 
 stock on adjacent premises, will be restrained by injunction, al- 
 though the complainant might be able to supply water for his 
 cattle from an independent source at a comparatively small cost.' 
 
 Altliough one may appropriate all the underground water in 
 his soil, he has no right to poison it, however innocently, or to 
 contaminate it, so that when it reaches his neighbor's land it will 
 be unfit for use either by man or beast, ^ 
 
 Every citizen holds his property subject to the implied obliga- 
 tion that he will use it in such way as not to prevent others from 
 enjoying the reasonable use of their property.* It is the duty 
 of every man in exercising any of his rights to consider how 
 they will affect others. He must so exercise them as not un- 
 necessarily to injure another in the enjoyment of his rights 
 or property. An individual in the exercise of his absolute 
 rights, if it may be reasonably apprehended that he may endanger 
 the safety of others in the enjoyment of their rights, must exer- 
 cise them with a due regard for the safety of such others." 
 
 So the owner of a lot abutting on a public street in a city has 
 no right to erect a building; on it with a roof so constructed that 
 ice and snow collecting on it will naturally and probably fall upon 
 the sidew^alk below, thereby exposing foot passengers to bodily 
 injury ; and if he does so construct it, he is liable, without other 
 
 1 Whitney v. Wlieeler Cotton Mills (Mass. May 9, 1890) 7 L. R. A. 613. 
 
 ^Bai^ton V. Union Cattle Co. (Neb. Dec. 31, 1889) 7 L. R. A. 457. See 
 Chapman v. Rochester, 110 N.Y. 273, 1 L. R. A. 296, and note; Ferguson 
 V. Firmenich Mfg. Co. 77 Iowa, 576; Oardner v. Newburgh, 2 Johns. 
 Ch. 162, 1 N. Y. Ch. L. ed. 382; Holsman v. Boiling Spring Bleaching Co. 
 14 N. J. Eq. 335; Baltimore v. Warren Mfg. Co. 59 Md. 96; Richmond 
 Mfg. Co. V. Atlantic De Laiiie Co. 10 R. I. 106. 
 
 ^Einnaird v. Standard Oil Co. (Ky. Jan. 25, 1890) 7 L. R. A. 451; Bal- 
 lard V. Tomlinson, L. R. 29 Ch. Div. 115; Ottawa Gas-Light C. Co. v. 
 Graham, 28 111. 74; Pottstoicn Gas Co. v. Murphy, 39 Pa. 257; Columbus 
 Gas Co. V. Freeland, 12 Ohio St. 392; Hodgkinson v. Ennor, 4 Best & S. 
 229; Turner v. Mirjield, 34 Beav. 390. 
 
 estate V. Yopp, 97 N. C. 477. 
 
 ^Rupard v. Chesapeake & 0. R. Co. (Ky. Feb. 21, 1890) 7 L. R. A. 816.
 
 Chap. II.] NUISANCES. 9" 
 
 proof of negligence, to a person injured by tlie falling ice or snow 
 while traveling on the sidewalk with dne care.' 
 
 It is the duty of the owner of a building to keep it in such safe 
 condition that his neighbor or travelers on the highway shall not 
 suffer injury.' TJie same rule requires care both in the original 
 construction and maintenance, that the building may not fall upon 
 the adjoining property.' But neither the Legislature nor a munic- 
 ipal corporation by its authority can declare that use a nuisance 
 .which is not such in fact.'' 
 
 The building of a private residence on one's land cannot be de- 
 clared a nuisance because it may have a tendency to depreciate 
 the value of the adjoining property by shutting out the sea, gulf 
 or river breeze and obstructing the view of the sea or water. 
 Where the use of land furnishes the test for the determination of 
 the constitutionality of a law prohibiting it as a nuisance, the Leg- 
 islature may not conclusively determine the effect to be harmful. 
 This is a matter for judicial determination.* 
 
 It may be said generally that a man has a right to cultivate or 
 improve his land in the usual and reasonable way, as well upon 
 the hillside as in the plain, and he cannot be restrained from doing^ 
 so because a mill pond or other body of water below may be in- 
 jured by the washing down of the soil.* 
 
 a. JVuisances. 
 
 If, however, the use to which the property be put does in point 
 of fact constitute a nuisance, the liability for maintaining it to the- 
 injury of adjoining owners does not depend on the question 
 whether such use by the owner is reasonable or otherwise, but on 
 the question of whether he injures his neighbor.^ Indeed, every 
 
 ^Hannem v. Pence, 40 Minn. 127. 
 
 ^Ehron v. Brock, 144 Mass. 516, 4 New Eng. Rep. 424; Shipley v. Fiftu 
 
 AssoAQQ Mass. 194; Belloics v. Sackett, 15 Barb. 96. 
 ^ScJiell V. Second Nat. Bank, 14 Minn. 43; Kajypes v. Appcl, 14111. App. 170; 
 
 Qorham v. Gross, 125 Mass. 233. 
 
 *Des Plaines v. Payer, 123 111. 348, 12 West. Rep. 760. 
 
 ^Quiniini v. Bay St. Louis, 64 Miss. 483; Garrett v. Janes, 65 Md. 260, 7 
 Cent. Rep. 403. 
 
 ^Middlesex Co. v. McCue, 149 Mass. 103. 
 
 ''Reinhardt v. Mentasti, L. R. 42 Ch. Div. 685, 40 Alb. L. J. 490.
 
 10 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 -case of (wlia! is ordinarily called) nuisance which is injurious to 
 another in the enjoyment of his property, whether by setting up 
 a noxious trade, or a noisy occupation, is a nuisance, fully within 
 this rule restricting the use of property and governed by it. 
 
 That is a nuisance which annoys and disturbs one in the posses- 
 sion of his property, rendering its ordinary use or occupation 
 physically uncomfortable to him.^ 
 
 It is an actionable nuisance to build one's chimney so low as to 
 •cause the smoke to enter his neighbor's house." 
 
 The placing of the poles of a fence on the outer edge of a high- 
 way will render the party guilty of a nuisance.^ The Mass- 
 achusetts Acts of 1887, chap. 348, making a private nuisance 
 of any fence unnecessarily exceeding 6 feet in height, mair- 
 tained for the purpose of annoying owners of adjoining prop- 
 erty, is held to be within the limits of the police power and is 
 constitutional with respect to fences erected either before or arter 
 its passage.* 
 
 A powder magazine in which is constantly kept stored thou- 
 sands of pounds of powder, situated between 300 and 400 feet 
 from a private residence, uninclosed and surrounded by a growth 
 of weeds and grass, and which is a constant source of alarm and 
 causes a great depreciation in value of the resident's property, — is 
 a nuisance." Indeed, the keeping of gunpowder in places where it 
 will be liable, in case of explosion, to injure a house in close proximi- 
 ty, constitutes a private nuisance, and the person so keeping it is lia- 
 ble for injury resulting from such explosions, without regard to 
 the question whether he was chargeable with negligence." 
 
 The exercise of reasonable care in the creation or maintenance 
 of a nuisance can never be an absolute defense to an action for an 
 injury occasioned thereby.^ 
 
 In MoKeon v. See, 4 Eobt. 449, it was held that the defendant 
 
 1 ^Baltimore & P. R. Go. v. Fifth Baptist Church, 108 U. S. 317, 27 L. ed. 
 
 739. 
 ^Reg. V. United Kingdom E. Tel. Co. 31 L. J. N. S. M. C. 167; Davis v. New 
 
 York, 14 N. Y. 524. 
 *Bideout v. Knox, 148 Mass. 368. 2 L. R. A. 81. 
 ^Comminge v. Stevenson, 76 Tex. 642. 
 ^Laflin-Rand Poioder Co. v. Tearney, 131 111. 322, 7 L. R. A. 262; Heeg v. 
 
 Licht, 80 N. Y. 579; Dilworth's App. 91 Pa. 247, 
 ''Wilkinson v. Detroit S. & S. Works, 73 Mich. 405.
 
 Chap. II.] INTENTION TO CAUSE INJURY. 11 
 
 had no right to operate a steam-engine and other machinery upon 
 his premises, so as to cause the vibration and shaking of pLiintiffs 
 adjoining buildings to such an extent as to endanger and injure 
 them.* 
 
 A license given by a county board of health " to manufacture 
 fertilizers and materials" will not authorize the licensee to create 
 noisome odors and thereby corrupt the air, to the inconvenience 
 of the public." 
 
 The supervisors cannot by license authorize a railroad company 
 to construct or maintain a nuisance in the public streets^ even 
 though the damages are inappreciable.* 
 
 Where the prosecution of a business in itself lawful, in the 
 neighborhood of a dwelling-house, renders the occupation of it 
 materially uncomfortable by reason of noises alone, the carrying 
 on of such business, while it produces such results, will be re- 
 strained by a court of equity.* 
 
 A skating rink erected within a short distance of a dwelling, 
 when the noise from the skating and attending it is of such a 
 character as to materially interfere with the comfort and enjoy- 
 ment of the inmates of such dwelling, is properly enjoined by a 
 court of equity.' 
 
 b. Intention to Cause Injury. 
 
 Intention to cause the injury is not, in all these cases, a control- 
 ling element, although in many cases of the kind it may be essen- 
 tial to prove it in order to establish a liability. But express in- 
 tention may make the act in some cases unlawful in the beginning; 
 so that where the injury intended follows, a right of action ac- 
 crues, when, if there had been no such intention, it might be 
 doubtful whether the party would have any ground of action.' 
 
 At common law a man has a right to build a fence on his own 
 
 'See also Fish v. Dodge, 4 Denio, 312. 
 
 ^Garrett v. State, 49 N. J. L. 94, 5 Cent. Rep. 337. 
 
 ^Sullivan v. lioyer, 72 Cal. 248. 
 
 ^Humphrey v. Irvin (Pa. Oct. 4, 1886), 4 Cent. Rep. 687. See Adams v. 
 
 Chicago, B. <fc N. E. Co. 39 Minn. 286, 1 L. R. A. 493, note. 
 » ^Stiyder v. Cabell, 29 W. Va. 48. 
 iChesley v.' King, 74 Me. 164; Burke v. Smith, 69 Mich. 380, 15 West. 
 
 Rep. 371.
 
 12 LVIPOSED DUTIES, PEKSONAL, [Part I. 
 
 land as high as he pleases, however much it may obstruct his neigh- 
 bor's light and air. And the limit up to which a man may impair 
 his neighbor's enjoyment of his estate by the mode of using his 
 own is fixed by external standards only/ But it is plain that the 
 right to use one's property for the sole purpose of injuring others 
 is not one of the immediate rights of ownership ; it is not a right 
 for the sake of which property is recognized by the law, but is 
 only a more or less necessary incident of rights which are estab- 
 lished for very different ends. It has been thought by respectable 
 authorities that even at common law the extent of a man's rights 
 might depend upon the motive with which he acted." 
 
 In speaking of personal rights, it is said : " These rights should 
 not be exercised from mere malice.'" In Hideout v. Knox, 
 148 Mass. 368, 2 L. K. A. 81, it was decided that chapter 
 348 of the Acts of Massachusetts of 1887, making a private 
 nuisance of any fence unnecessarily exceeding six feet in 
 height, maintained for the purpose of annoying owners of 
 adjoining property, is within the limits of the police power and is 
 constitutional in respect to fences erected either before or after 
 its passage. But not accepting this limitation as existing at com- 
 mon law nor as one within the power of the Legislature to impose 
 upon the owner of property, it was insisted in argument in Ride- 
 out V. Knox, supra, that it does not follow that the rule is the 
 same for a boundary fence unnecessarily built more than six feet 
 high. It may be said that the difference is only one of degree. 
 The answer was that most differences are, when clearly analyzed. 
 At any rate, difference of degree is one of the distinctions by 
 which the right of the Legislature to exercise the police power is 
 determined. Some small limitations of previously existing rights 
 incident to property may be imposed for the sake of preventing a 
 
 ^Walker v. Cronin, 107 Mass. 555, 564; dial field v. Wilson, 28 Vt. 49; 
 PhelpsY. Nowlen, 72 N.Y. 39; Fmzier v. Broton, 12 Ohio St. 294; Martin, 
 B in Rawniron v. Taylor, 11 Exch. 369, 378, 384. See Benjamin v. 
 WJieeler, 8 Gray, 409, 413. 
 
 ^Greenleaf v. Francis, 18 Pick. 117, 119, 122. See Carson v. Western 
 R. Go. 8 Gray, 423, 424; Roath v. Driseoll, 20 Conn. 533, 544; Wlieatley 
 V. Baucjli, 25 Pa. 528; Swett v. Outts, 50 N. H. 439, 447; Rideout v. Knox, 
 148 Mass. 368, 2 L. R. A. 81; Burroughs v. Satterlee, 67 Iowa, 396; 
 Chesley v. King, 74 Me. 164. 
 
 ^Oreenleaf v. Francis, 18 Pick. 117. See also Dellii v. Toumans, 50 Barb. 
 316-320; Panton v. Holland, 17 Johns. 92-98; Haldeman v. BrucJchart, 45 
 Pa. 514; Cooley, Torts, 596; Washb. Easem. (3d ed.) 487, 488.
 
 Chap. II.] INTENTION TO CAUSE INJURY. 13 
 
 manifest evil ; larger ones could not be except by the exercise of 
 the right of eminent domain.' The Statute is said to be confined 
 to fences and structures in the nature of fences, and to such fences 
 only as unnecessarily exceed six feet in height. It is hard to im- 
 agine a more insignificant curtailment of the rights of property. 
 Even the right to build a fence above six feet is not denied when 
 any convenience of the owner would be served by building higher. 
 It was thought at least doubtful whether the Act applied to 
 fences not substantially adjoining the injured party's land. The 
 fences must be "maliciously erected or maintained for the pur- 
 pose of annoying" adjoining owners or occupiers. This language 
 the court held clearly expresses that there must be an actual ma- 
 levolent motive, as distinguished from merely technical malice. 
 The meaning is plainer than in the case of statutes concerning 
 malicious mischief." It is not enough, it was said, to satisfy the 
 words of the Act that malevolence was one of the motives, but 
 malevolence must be the dominant motive, a motive without 
 which the fence would not have been built or maintained. A 
 man cannot be punished for malevolently maintaining a fence 
 for the purpose of annoying his neighbor, merely because he 
 feels pleasure at the thought he is giving annoyance, if that 
 pleasure alone would not induce him to maintain it, or if he 
 would maintain it for other reasons even if that pleasure should 
 be denied him. If the height above six feet is really necessary 
 for any reason there is no liability, whatever the motives of 
 the owner in erecting it. If he thinks it necessary and acts on 
 his opinion, he is not liable because he also acts malevolently. 
 The Statute thus construed was decided within the limits of the 
 police power and constitutional, so far as it regulates the subse- 
 quent erection of fences. To that extent it simply restrains a 
 noxious use of the owner's premises ; and although the use is not 
 directly injurious to the public at large, there is a public interest 
 to restrain this kind of aggressive annoyance of one neighbor by 
 another, and to mark a delinite limit beyond which it is not law- 
 ful to go.* 
 
 ^Sawyer v. Bavis, 136 Mass. 239, 243. 
 
 -Com. Y.Walden, 3 Cush. 558; Com. v. Ooodioin, 122 Mass. 19, 35. 
 
 ^Com. V. Alger, 7 Cush. 53, 86, 96; Watertown v. Mayo, 109 IMass. 315; 
 Train v. Boston Dmnfectinrj Co. 144 Mass. 523, 4 New Eng. Rep. 437. 
 See also Talbot v. Hudson, 16 Gray, 417, 423.
 
 14 IMPOSED DUTIES, PERSONAL. [Fart I. 
 
 The noxious trade, the noisy occupation or the erection of a 
 building, considered abstractly from the rights of others, is per- 
 fectly innocent ; but if another has an existing right, and is, in 
 consequence, injured by it or prevented from the reasonable en- 
 joyment of such right, he sustains an actionable injury. Every 
 person is protected by this rule, who has an equal right with him 
 who does the act, and who is injured without his default in the 
 exercise of that riglit.^ 
 
 c. Proof of Intention to Injure not Always 
 Required. 
 
 In the case of the nuisances referred to, where the intention to 
 do an injury is not an essential ingredient in an action, the act, 
 and the injury to the right, are the essential ingredients. In cases 
 where the intention is necessary, the law will supply it. In Pa7'k- 
 hiirst V. Foster^ 1 Ld. Raym. 480, the action was against the de- 
 fendant, a constable, for illegally billeting a dragoon on the 
 plaintiff, and forcing the plaintiff to find meat, drink and lodging 
 for him. The special verdict found that plaintiff kept a house at 
 Epsom, for those who came there for the air, and to drink the 
 waters there, and sold small beer to his lodgers, and that defend- 
 ant had billeted a dragoon there, and that the dragoon forced 
 plaintiff to find meat, etc. It was objected for the defendant that 
 there was a variance between the fact in the verdict and in the 
 declaration. Lord Holt said : " At common law, if a man does 
 an unlawful act, he shall be answerable for the consequences of it, 
 especially where, as in this case, the act was done with intent that 
 consequential damages should ensue." So if one on the public street 
 erect a building with a roof that will naturally cast snow and ice 
 upon travelers, no proof of intention or of negligence is required." 
 
 Where the act must necessarily cause continuous and direct 
 injury, the law will necessarily supply the intention. In Losee v. 
 Buchanan, 51 N. T. 476, referring to the decision in Selden v. 
 Delaware (& H. Canal Co., 24 Barb. 3(32, declaring the canal com- 
 
 ^Shuely v. Cedar Rapids, I. F. & JSf. B. Co. 74 Iowa, 169; Pensacola Gas 
 Co V Pebley (Fla. Feb. 5, 1889) 5 So. Rep. 593; Chapman v. Rochester, 
 110 N. Y. 273, 1 L. R. A. 298. 13 Cent. Rep. 426. 
 
 ^Hannem v. Pence, 40 Minn. 127.
 
 Chap. IL] INTENTION SOMETIMES ESSENTIAL TO BE SHOWN. 15 
 
 pany liable for inundating adjoining lands, the court says that " if 
 the defendant did not have the protection of the law for the dam- 
 ages which it occasioned, then it was clearly lial)le. Its acts were 
 necessarily and directly injurious to the plaintiff. It kept the 
 water in its canal when it knew the necessary consequence was to 
 flood the plaintiff's premises. The damage to plaintiff was not 
 accidental, but continuous, direct and necessary. In such a case, 
 the wrong-doer must be held to have intended the consequences of 
 his act, and must be treated like one keeping upon his premises a 
 nuisance doing constant damage to his neighbor's property." 
 
 So one who lets his house knowing it is infected without noti- 
 fying the tenant will be liable if he suffers from the exposure 
 without proof of intent on the part of the owner.^ 
 
 d. Intention Sometiines Essential to he Shown.. 
 
 There are cases, however, wliere the intention must be proved 
 as a fact. In Jefferies v. Duncomhe, 11 East, 226, defendant had 
 erected and placed a lamp in front of and adjoining to plaintiff '& 
 house and kept it lighted there in the day-time, meaning thereby 
 to mark out the plaintiff's house as a house of ill-fame. It was 
 objected nisi 2:)rius this was not actionable. It was held by Lord 
 Ellenborough to be so and the court afterwards sustained tlie ac~ 
 tion. Here the act by itself would not have been unlawful, as 
 against any individual, but the intent of doing so to the injury of 
 the plaintiff made it so. 
 
 So in Deane v. Clayton^ 7 Taunt. 489, the "fixing and screwing 
 of spears upon defendant's inclosed close, by itself, would not have 
 been unlawful, as against any individual; for the fixing of an iron 
 railing with pointed top around an area in front of a house is not 
 negligence such as to create a liability for injuries by one of such 
 points to the hand of a traveler, which he puts out to save himself 
 from falling when he slips on an icy pavement.' But the intent in 
 placing the spears so as to injure, wound and destroy all dogs which 
 should come on to defendant's land in pursuit of hares there, and 
 thereby destroying plaintiff's dog, constituted the wrong. Of course 
 
 ^Ceiar v. Earutz, 60 N. Y. 229. 
 
 ^Kelly V. Bennett (Pa. Feb. 3, 1890), 7 L. R. A. 120.
 
 16 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 the instrument with which the injury is inflicted and its location 
 and the surrounding circumstances will often determine as to the 
 necessity of proof of express intent to injure. So may the nature 
 or legality of the act itself. Thus the intent was necessary to be 
 proved as a matter of fact in Bloodgood v. Ayers, 108 N. Y. 400, 
 11 Cent. Rep. 108, where it was held that no person is liable for 
 interrupting a stream supplying a well or spring, unless he knew 
 beforehand where the stream was — a doctrine well settled by an 
 .unbroken line of authority. 
 
 «. Placing Spring Guns or Traps or Keeping a 
 Ferocious Animal upon One's Land. 
 
 There is a line of decisions in which it has been held that a 
 person who sets spring guns or traps upon his own land is liable 
 to persons injured by them, although they were trespassers. 
 'These decisions are based upon the ground that a person would 
 iiave no right to intentionally or directly shoot or entrap a tres- 
 passer upon his land and hence he cannot do that indirectly which 
 he has no riglit to do directly. -The law holds him responsible, 
 not upon the ground of negligence, but upon the ground that he 
 intended the consequences which followed his act. There is an- 
 other line of decisions where a person has been held liable to 
 those who were injured while passing, by permission, over his 
 private way. Thus a man has a private way lying over his own 
 land to his house, and he digs a ditch across it or carelessly places 
 an obstruction on it, and the person passing over the same towards 
 his house is, without his own fault, injured. In such case he 
 would be held liable, because he may be treated as having invited 
 the person to pass over this road to his house, and it would be a 
 fraud on his part knowingly to place these obstructions, in the 
 nature of traps, in the way.^ Although the owner of land in gen- 
 •eral may use it as he please and leave it in such condition as he please, 
 he cannot, without giving any warning, place thereon spring guns 
 or dangerous traps which may subject a person going on the prem- 
 ises without actual permission or license, and as a mere intruder, to 
 injury, without liability. N"or may he, without such warning, guard 
 
 ^ Corby V. Hill, 4 C. B. N. S. 556; Clark v. Chambers, L. R, 3 Q. B. Div. 
 327; Campbell v. Boyd, 88 N. C. 129.
 
 Chap. II.] PLACING SPRING GUNS, ETC., UPON ONe's LAND. 17 
 
 his premises in the day-time by a ferocious animal permitted the 
 range of the yard or grounds, unnecessarily exposing human life 
 in his absence.' The value of human life forbids measures, for 
 the protection of the possession of real property against a mere 
 intruder, which may be attended by such ruinous consequences. 
 The duty in such case grows out of circumstances, independently 
 of any question of license to enter the premises." 
 
 ^Loomis V. Terry, 17 Wend. 490; Johnson v. Patterson, 14 Conn. 1* State 
 V. Moore, 31 Conn. 479. 
 ■ '^Brock V. Copeland. 1 Esp. 203; Sarch v. Blackburn, 4 Car. & P. 297; Bird 
 V. Holhrook, 4 Bing. 628. 
 
 2
 
 CHAPTEE III. 
 INJURY TO LICENSEE OR INTRUDER ON PREMISES. 
 
 Sec. 5. Duty of Keeping Premises Safe for Tliose Who Enter on 
 Invitation ujjon One^s Land. 
 
 Sec. 6. Must Avoid Affirmative Negligence toward Licensee. 
 
 Sec. 7. Actual or Constructive Intent to Injure Intruders must 
 Appear. 
 
 Sec. 8. Dnty of Occupier of Premises Adjoining Street. — Attract- 
 ing Children from the Public Street, or Adjacent thereto, into 
 Danger. 
 
 Section Z.—Duty of Keeping Premises Safe for Those 
 Who Enter on Invitation upon One's Land. 
 
 The common law or statute provides ample remedies for every 
 injury the owner of land may sustain by unlawful entry upon hi& 
 premises. An action for damages may be sustained against a man 
 for the damages done by himself or his cattle, or the cattle may 
 be distrained (but not killed or wounded) for the damage done. 
 But where the owner or occupier of land, in the prosecution of 
 his own purposes or business, or of a purpose or business in which 
 there is a common interest, invites another, either expressly or 
 impliedly, to come upon his premises, he cannot with impunity 
 expose him to unreasonable or concealed dangers, as, for example, 
 from an open trap in a passageway.' The duty in this case is 
 founded upon the plainest principles of justice. The keeper of a 
 public place of business is bound to keep his premises, and 
 the passageways to and from them, in safe condition, and use 
 ordinary care to avoid accidents or injury to those properly 
 entering upon his premises on business." But this rule only ap- 
 plies to such parts of the building as are a part of, or used to gain 
 access to, or constitute a passageway to and from, the business por- 
 tion of the building, and not to such parts of the building as are 
 
 ^Indermaur v. Daines, L. R. 1 C. P. 374, L. R. 2 C. P. 311. 
 
 ^ Parker V. Portland Pub. Co. 69 Me. 173; Carleton v. Franconia Iron & Steel 
 Co. 99 Mass. 316; Bennett v. Louisville & N. B. Co. 102 U. S. 577, 26 L. 
 ed. 235.
 
 Chap. III.] DUTY OF KEEPING PREMISES SAFE. 19 
 
 used for the private purposes of the owner, unless the party in- 
 jured has been induced by the invitation or allurement of the 
 owner, express or implied, to enter therein.' As was said in 
 Sweeny v. Old Colony & N. R. Co., 10 Allen, 372 : " In order to 
 maintain an action for an injury to person or property by reason 
 of negligence or want of due care, there must be shown to exist 
 some obligation or duty towards the plaintiff which the defendant 
 has left undischarged or unfulfilled." By virtue of this prin- 
 ciple the occupants of a wharf, having general possession and 
 control, are under obligations to keep the premises in reasonably 
 safe condition for the use of all persons who may lawfully resort 
 there ; and any person lawfully going there for the transaction of 
 business to which the premises are appropriated has a right to 
 assume that the structure itself and the access to it are in a reas- 
 onably safe condition." And so the occupier of any store, shop, 
 warehouse or other place of business is bound to use care and dil- 
 igence proportioned to the risk, to keep his premises and the ap- 
 proaches thereto, and appliances thereof, at least reasonably safe 
 for the access and use of those coming there by his invitation, 
 express or implied, on any business to be transacted or permitted 
 by him, or for any other purpose beneficial to him, and is liable 
 for any injury to any such person, who is himself guilty of no 
 contributory negligence, occasioned by his want of such care and 
 diligence.* 
 
 ^ZoeUseh v. Tarbell, 10 Allen, 385; Parker v. Portland Pub. Oo. 69 Me. 173; 
 Pierce v. Whitcomh, 48 Vt. 137; Wilkinson v. Fairrie, 1 Hurlst. & C. 633; 
 Murray v. McLean,m 111. 378; Victory v. Baker, 67 N.Y. 366; Toomey v. 
 Sanborn, 146 Mass. 28, 5 New Eng. Rep. 549. 
 
 « O'Rourke v. Peck, 40 Fed. Rep. 907; Johnson v. Spear, 76 Mich. 139. 
 
 3 Oodley v. Eagerly, 20 Pa. 387, 59 Am. Dec. 735, note; Zoebisch v. Tar- 
 bell, 10 Allen, 385, 87 Am. Dec. 663 et seq., note; Bennett v. Louisville & 
 N. R. Go. 102 U. S. 577, 26 L. ed. 235; Nave v. Flack, 90 Ind. 205, 207; 
 Elliott V. Pray, 10 Allen, 378, 87 Am. Dec. 653; Garlelon v. Franconia I. 
 & S. Co. 99 Mass. 216; Gilbert v. Nar/le, 118 Mass. 278; Nickerson v. Tir- 
 rell, 127 Mass. 236; Donaldson v. Wdson, 60 Mich. 86, 1 Am. St. Rep. 
 487, and note; Welch v. McAllister, 15 Mo. App. 492; Homer v. Everett, 
 15 Jones & S. 300; Ritterman v. Ropes, 19 Jones & S. 25, 29; Tousey v. 
 Roberts, 21 Jones & S. 446; Ackert v. Lansing, 59 N. Y. 646; Beck v. Gar- 
 ter, 68 N. Y. 283; Dobiecki v. Sharp, 88 N. Y. 203; Glussman v. Long 
 Island R. Go. 9 Hun, 618; Freer v. Gameron, 4 Rich. L. 228; Toomey v. 
 Sanborn, 146 Mass. 28, 5 New Eng. Rep. 549; Pennsylvania Go. v. Mar- 
 ion, 104 Ind. 239, 2 West. Rep. 234; Keefe v. Boston & A. R. Go. 142 
 Mass. 251, 2 New Eng. Rep. 660; Hotel Asso. of Omaha v. Walter, 23 Neb. 
 280; Atlanta G. S. Oil Mills v. Goffey, 80 Ga. 145; Baltimore tfe 0. R. Go. v. 
 ifcse, 65 Md. 485, 3 Cent. Rep. 724; Ghapmanv.Rothwell, El. Bl. &E1. 168;
 
 20 IMPOSED DUTIES, PERSONAL, [Part I. 
 
 "Where a man invites tlie public to use a part of his land by 
 connecting it with a sidewalk, he must exercise due diligence to 
 keep it in a reasonably safe condition for such use.' Where an 
 owner directly or indirectly induces persons to enter and pass over 
 his premises, he thereby assumes an obligation imposed by the 
 law, to keep them in a safe condition and suitable for such invited 
 and authorized use." The owner of a store, between which and 
 the sidewalk there is a vacant space covered with flagging, in 
 which, under a show window of the store, there is an opening, is 
 liable to persons injured by a defect in such opening, and he is not 
 relieved from liability by the fact that the opening is necessary to 
 give light to the basement under the store, when he could have 
 protected such opening by a railing so as to render it safe without 
 impairing its usefulness,' An invitation may be inferred from 
 some designation or dedication of the property to a use.* 
 
 Section 6, — Must Avoid Affirmcitive JYegligence to- 
 ward Licensee. 
 
 The duty of keeping premises in a safe condition even as against 
 a mere licensee may prove determinate of liability, where affirma- 
 tive negligence in the management of the property or business of 
 the owner would be likelj^ to subject persons exercising the privi- 
 lege theretofore permitted and enjoyed to great danger,^ The 
 case of running a locomotive without warning over a path across 
 the railroad which has been generally used by the public with- 
 
 Indermaur v. Dames, L. R. 1 C. P. 274, affirmed, L. R. 3 C. P. 311; White 
 V. France, L. R. 2 C. P. Div. 308; Holmes v. North Eastern R. Co. L. R. 4 
 Exch. 254, affirmed, L. R. 6 Exch. 123; Francis v. Gockrell, L. R. 5 Q. 
 
 B, 501; Corby v. Hill, 4 C. B. N. S. 556; Smith v. London & St. K. Bocks 
 Co. L. R. 3 C. P. 336; Holmes v. North Eastern R. Co. L. R. 6 Exch. 123. 
 
 > ^Tomle V. Hampton, 129 111. 379. 
 
 ^Nichols V. Washington, 0. & W. R. Co. 83 Va. 99, 5 Am. St. Rep. 257. 
 
 ^Indiana B. & W. R. Co. v. Barnhart, 115 Ind. 399, 13 West. Rep. 
 
 425- Diamond State Iron Co. v. (?ifes(Del. Oct. 27, 1887) 9 Cent. Rep. 577; 
 
 Sweeny v. Old Colony <& N. R. Co. 10 Allen, 368. 
 ^Larmore v. Crown Point Iron Co. 101 N. Y. 391, 3 Cent. Rep. 409; Corby 
 
 V. Hill, 4 C. B. N. S. 556; Smith v. London & St. E. Docks Co. L. R. 3 
 
 C. P. 326; Holmes Y. North Eastern R. Co. L. R. 6 Exch. 123; Nave\. 
 Flack, 90 Ind. 205; Carleton v. Franconia Iron & 8. Co. 99 Mass. 216; 
 Pastene v. Adams, 49 Cal. 87; Bennett v. Louisville & N. R. Co. 102 U. S. 
 577, 26 L. ed. 235; Welch v. McAllister, 15 Mo. App. 493.
 
 Chap. Ill,] AFFIRMATIVE NEGLIGENCE TOWARDS LICENSEE, 21 
 
 out objection furnislies an example,' But to charge a defendant 
 with negligence, on the ground that he has caused a place to be 
 or to remain in an unsafe and dangerous condition, whereby in- 
 jury has resulted to another, he must have done or omitted to 
 do an act by which a legal duty or imposed obligation has been 
 violated." 
 
 Where a railroad company was under obligation to place a gate 
 across a foot-path and a child between four and five years of age 
 was found near the track with a foot cut off, the fact that 
 the defendant had neglected to place the gate across the foot-path, 
 as it might have deterred the child from attempting to pass, ren- 
 dered it liable,^ 
 
 In Clarice v. Crimmins (Sup. Ct, July 18, 1890), 32 N.Y. S. K. 
 978, at the time of the accident the defendant was digging a trench 
 in Broadway below Liberty Street, and he had there constructed a 
 bridge over such trench. This was some ten days or two weeks 
 before the plaintiff was injured, and the subway work was still 
 progressing when the accident occurred. A loose beam was left 
 lying upon this bridge, and it had occasionally been knocked out 
 of position prior to the accident, and replaced by laborers on the 
 subway. The accident was caused by the hind wheel of a coal 
 cart running upon one of the ends of the beam and tilting the 
 other end up. The end that was thus elevated struck the plaintiff 
 on her head and injured her. A prima facie case was thus made 
 out against the defendant. There was from the evidence no pre- 
 sumption that a stranger had deposited the beam upon the bridge. 
 On the contrary, there was a fair inference, for the consideration 
 of the jury, that the defendant or his servants had placed it there 
 to serve as a line of division between the foot-path and the road- 
 way. His employes, too, replaced it when it was knocked out of 
 position, and, indeed, everything in the case tended to support the 
 presumption that it was part of defendant's bridge. This beam 
 should either have been removed altogether or securely nailed to 
 
 1 Barry v. New York C. & H. R. R. Co. 92 N. Y. 290. See also Beck v. 
 Carter, 68 N. T. 293. 
 
 * Traskv. Shoticell, 41 Minn. 66; Matthews v. BoriKee, 51 N. J. L. 630; Fan- 
 joy V. Scales, 29 Cal. 243; Khron v. Brock, 144 Mass. 516. 
 
 3 Williams v. Great Western R. Co. L. R. 9 Exch. 157, 43 L. J. N. S. Exch. 
 105, See Clarke v, Rhode Island E. L. Co. 16 R. I. — , 17 Atl. Rep. 59.
 
 22 IMPOSED DUTIES, PEKSONAL. [Part I. 
 
 the bridge — certainly, when it was seen that accidents might occur 
 from its being knocked about by passing vehicles. 
 
 Where it is not practicable to guard a trap door or hatchway in 
 a floor with a railing, the owner is bound to give actual notice of 
 danger to every person lawfully approaching the place, and in de- 
 fault of such notice is liable for all injuries resulting therefrom.^ 
 An owner of pi'eraises having a trap door or hatchway so near a 
 rear door which is in common use as a means of entering or leav- 
 ing the building as to render it difficult for one entering the door 
 without notice of the hatchway to stop in time to save himself from 
 falling into it if it is open is guilty of such negligence of the im- 
 posed duty to keep his premises safe for persons lawfully thereon 
 as will render him liable for damages, where, after a person has 
 passed out of the door, the hatchway is opened and left open, with- 
 out fastening the door or stationing anyone at it to give notice, and 
 the person on re-entering falls through the hatchway and is in- 
 jured." 
 
 Where a person entered a warehouse, at a door which was 
 usually kept unlocked, although not much resorted to, and which 
 was occasionally used, although he was in the habit of entering at 
 the main entrance at the other end of the building ; and where, 
 after doing his errand, he started to go out through a gangway 
 which was in common use, toward the main entrance, and was 
 killed by the negligence of emj)loyes in the warehouse, — recovery 
 may be had for his death. ^ 
 
 Throwing heavy bales of merchandise down from the top of 
 bales piled in a warehouse, into a gangway which is left to connect 
 two entrances through which people come to the office, is not the 
 use of proper care, where a lookout is stationed at one entrance 
 only, and no precaution taken to prevent people from coming 
 along from the other entrance, except a partial obstruction of the 
 passage; and where the persons throwing down the bales cannot 
 see whether anyone is below or not.* 
 
 Where there is no nuisance, but a person comes upon the land 
 without invitation, but simply as a bare licensee, and the occupier 
 or owner of the property passively acquiesces in this, if an injury is 
 
 > 2 Engel v. Smith (Mich. July 2, 1890) 46 N. W. Rep. 21. 
 
 8 * O'Callaghan v. Bode (Cal. June 12, 1890) 24 Pac. Hep. 269.
 
 Chap. III.] INTENT TO INJURE INTKUDERS MUST APPEAR. 23 
 
 sustained by reason of a mere defect in the premises, the ocenpier 
 is not liable, for he has not been guilty of any neglect of any duty 
 imposed upon him as such licensor, as the licensee has taken all 
 the risk upon him except as against the affirmative neglect of the 
 occupier of the premises.* 
 
 A landlord is not required to take active measures to insure the 
 safety of intruders, where he has set no trap for the purpose of 
 injuring trespassers.' Nor is he liable for an injury resulting 
 from the unlawful use of his premises to one entering upon them 
 without right. A trespasser ordinarily assumes all risk of danger 
 from the condition of the premises ; and to recover for an injury 
 happening to him he must show that it was wantonly inflicted, or 
 that the owner or occupant, being present and acting, might have 
 prevented the injury by the exercise of reasonable care after dis- 
 covering the danger.' Nor will the failure to prohibit passage 
 over an eight-foot strip of land between two houses, which have no 
 other passage directly between them, constitute an invitation or 
 license sufficient to charge the owner with liability for injury to a 
 person going thereon from falling into an excavation.'' 
 
 Section T. — Actual or Constructive Intent to Injure 
 Intruders must Appear, 
 
 The owner who has neither expressly nor impliedly invited the 
 public to pass over his grounds is under no imposed duty to keep 
 them free from pitfalls or in a condition of safety for those who 
 
 1 Ousick V. Adams, 115 N. Y. 55; Campbell v. Lunsford, 83 Ala. 512; Eiiiqht 
 V. Abert, 6 Pa. 472; Sweeny v. Old Colony & N. R. Go. 10 Allen, 368; 
 Evansville & T. H. E. Co. v. Griffin, 100 lad. 221; Roulston v. Clark,'d E. 
 D. Smith, 366; Gautret v. Egerton, L. R. 2 C. P. 371, 36 L. J. N. S. C. P. 
 191; Hounsell v. Smyth, 7 C. B. N. S. 731. See also Wilkinson v. Fair- 
 rie, 32 L. J. N. S. Exch. 73, 1 Hurl. & C. 633; Barchell v. Hickisson, 50 
 L. J. N. S. Q. B. 101. 
 
 « Aldrich v. Wright, 53 N. H. 404. 
 
 « Clark V. Manchester, 62 N. H. 577; State y. Manchester & L. R. Co. 52 N. 
 H. 528; Morrissey v. Eastern R. Co. 126 Mass. 377; Severy v. Nickerson, 
 120 Mass. 306; Morgan v. Halloxcell, 57 Me. 375; Pierce v. Whitcomb, 48 Vt. 
 127; McAlpin v. Powell, 70 N. Y. 126; St. Louis, V. & T. II. R. Co. v. 
 Bell, 81 111. 76; Gavin v. Chicago, 97 111. 66; Wood v. School District, 44 
 Iowa, 27; Cauley v .■ Pittsburgh, C. & St. L. R. Co. 95 Pa. 398; Gillespie v. 
 McGowan, 100 Pa. 144. 
 
 * Reardon v. Thompson, 149 Mass. 267. See Converse v. Walker, 30 Hun, 
 596; Pierce v. Whitcomb, 48 Vt. 127; Evansville & T. H. R. Co. v. Griffin. 
 100 Ind. 221 ; Galligan v. Metacomet Mfg. Co. 143 Mass. 527.
 
 24 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 in pursuit of tlieir own pleasure or convenience pass over such 
 premises, even though it be with the acquiescence of the owner, 
 there being nothing thereon known to him amounting to a 
 nuisance.* 
 
 A person who moves around in the dark in a strange room, into 
 wliich he has entered of his own accord and witliout direction 
 from the owner, is himself responsible for his own misfortune if 
 injured.' 
 
 A stranger who comes to a manufacturing establishment on 
 business or otherwise has no right to choose for himself his means 
 of ingress and egress, and determine where bulky articles shall be 
 unloaded, or to unload them without inquiry and notice; and if he 
 does so it is at his own risk.' 
 
 To constitute negligence in the owner of premises a duty must 
 be shown to have been broken, what the duty was and how it was 
 broken. It is not sufficient that a careless act has been done by 
 the defendant by which the plaintiff has sustained loss.* The lia- 
 bility for an omission to do something depends entirely on the 
 extent to which a duty is imposed to cause the thing to be done.* 
 
 A person who goes upon the land of another without invitation^ 
 to secure employment from the owner of the land, is not entitled 
 to indemnity from such owner for injury received from a de- 
 fective machine on the premises, not obviously dangerous, which 
 he passes during the course of his journey.' 
 
 In Parker v. Portland Pub. Co., 69 Me. 173, plaintiff went to 
 defendant's newspaper office, late at night, to insert an advertise- 
 ment in its paper. The counting-house being closed, he ascended 
 to the upper floor, where, wandering about the hall in search of a 
 
 J Beardon v. Thompson, 149 Mass. 267; Nicholson v. Erie R. Co. 41 N. Y. 
 535; Zoelisch v. Tarbell, 10 Allen, 385; Pittsburgh, Ft. W. & G. R. Co. v. 
 Bingham, 29 Ohio St. 364; Flood v. Doodley, 15 N. Y. Week. Dig. 47; 
 Leary v. Cleveland, C. G. & I. R. Co. 78 Ind. 333; Morgan v. Pennsyl- 
 vania R. Co. 19 Blatchf, 239; Indianapolis v. Emm^elman, 108 Ind. 530, 6 
 West. Rep. 566. 
 
 » ^Bedell v. Berkey, 74 Mich. 435. 
 
 * Daniel v. Metropolitan R. Co. L. R. 5 H. L. 45, 40 L. J. N. S. C. P. 
 131; Gatttret v. Egerton, L. R. 3 C. P. 274, 36 L. J. N. 8. C. P. 191; Col- 
 lins V. Selden, L. R. 3 C. P. 498, 37 L. J. N. S. C. P. 233; Bulman v. Fur- 
 ness R. Co. 33 L, T. N. S. 430; Whittaker's Smith, Neg. 2. 
 
 B Mercy Docks & H. Board v. Gibbs, L. R. 1 H. L. 115, 35 L. J. N. S. 
 Exch. 335. 
 
 « L'lrmore v. Croton Point Iron Co. 101 N. Y. 391, 2 Cent. Rep. 409; Byrne 
 V. New York C. & H. R. R. Co. 104 N. Y. 363, 6 Cent. Rep. 393.
 
 Chap. III.] INTENT TO INJURE INTRUDERS MUST APPEAR. 25- 
 
 door, he fell into an elevator opening, the door of which had not 
 been closed, and was injured. Defendant was held uot liable. 
 So where plaintiff went at night to defendant's house to buy 
 oats, and they went together to the barn where the oats were kept, 
 and while defendant was seeking a measure plaintiff walked about 
 the barn in the dark, and fell through a hole in the floor and was 
 injured, it was held that defendant was not liable because the 
 walking about the floor in the dark was not invited by him, nor 
 was it a part of the business.* 
 
 A man must use his property so as not to incommode his neigh- 
 bor; but this maxim only extends to neighbors who do not inter- 
 fere with it or enter upon it.^ A mere passive acquiescence on 
 the part of the owner or occupant in the use of real property by 
 others does not involve him in any liability to them for its unfit- 
 ness for use.' If the dangers are patent and visible, the visitor 
 who comes to and is received within the home must share these 
 dangers in common with the other members of the family.* 
 
 A mere naked license or permission to enter or pass over an 
 estate will uot create a duty nor impose an obligation on the part 
 of the owner or person in possession to provide against the danger 
 of accident.* When a person has a license to go upon the grounds 
 or the inclosure of another, he takes the premises as he finds 
 them, and accepts whatever peril he incurs in the use of such li- 
 cense.* An open hole in land, which is not concealed otherwise 
 than by darkness, is a danger which a licensee must avoid at his 
 peril.'' One who enters the private apartments of another at the 
 mere license of the latter does so subject to all the attendant 
 risks.^ 
 
 ^Pierce v. Whitcortib, 48 Vt. 127. 
 
 ^KnigU v. Ahert, 6 Pa. 472; Moore v. Logan Iron & Steel Co. (Pa. Oct. 4, 
 
 1886), 4 Cent. Rep. 506. 
 ^Nicholson v. Erie R. Go. 41 N. Y. 525; Sweeny v. Old Colony & N. B. Co. 
 
 10 Allen, 368; Zoebmh v. Tarbell, Id. 385; Oillis v. Pennsylvania 11. Co. 
 
 59 Pa. 129. 
 *Soxithcot6 V. Stanley, 1 Hurl. & N. 247; Flower v. Pennm/lvania R. Co. 6^ 
 
 Pa. 210; Moore v. Logan Iron & Steel Co. (Pa. Oct. 4, 1886), 4 Cent. Rep. 
 
 506; 1 Addison, Torts, 280, 281. 
 ^Sweeny v. Old Colony & N. R. Co. 10 Allen, 373; Grogan v. Schiele, 53 Conn.. 
 
 186, 1 New Eng. Rep. 311. 
 Indiana, B. &W. R. Co. v. Barnliart, 115 Ind. 399. 
 ''Reardon v, Thompson, 149 Mass. 267. 
 ^Schmidt v. Bauer, 80 Cal. 565, 5 L. R. A. 580, and note.
 
 :26 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 Placing an iron railing with pointed top around an area in front 
 of a house is not negligence such as to create a liability for injur- 
 ies by one of such points to the hand of a traveler, which he puts 
 •out to save himself from falling when he slips on an icy pave- 
 ment.' Unless contrivances are placed upon premises with an 
 actual or constructive intent to hurt intruders, the occupier or 
 owner is not liable for injuries resulting to persons by reason of 
 the condition in which the premises have been left, or from the 
 prosecution of the business thereon in which the proprietor had 
 a right to engage." These cases proceed upon the ground that 
 the owner has done nothing to produce injury to those who have 
 ■of their own motion strayed upon or invaded the premises where 
 they are injured. In all such cases the owner may dig an excava- 
 tion on his own land, not substantially adjoining a public high- 
 way, and no action lies against him by one who has fallen into the 
 pit." 
 
 Section 8. — Duty of Occupier of Fremises Adjoining 
 Street. — Attracting Children from the PwhliG 
 Street, or Adjacent thereto, into Danger. 
 
 But there is a clear distinction between the cases just cited and 
 the case where an excavation is made in or so near a highway as 
 that one, while rightfully using the highway, may, without fault, 
 sustain injury by falling into the excavation. When an owner or 
 occupier of land makes an excavation upon his land so near to a pub- 
 lic highway as to be dangerous under ordinary circumstances to per- 
 sons passing by, it is his duty to take reasonable care to guard such 
 •excavation; and he is liable for injuries caused, even if such j)er- 
 
 ^Eelly V. Bennett (Pa. Feb. 3, 1890), 7 L. R. A. 120. 
 
 ^Galveston Oil Co. v. Morton, 70 Tex. 400; Emnsville & T. H. R. Co. v. 
 Qriffin, 100 Ind. 221-225; Gillespie v. McGoioan, 100 Pa. 144; Gramlich 
 V. Wurst, 86 Pa. 74, 27 Am. Rep. 684; Cauley v. Pittsburg, C. & St. L. 
 R. Co. 95 Pa. 398, 40 Am. Rep. 664; McAlpin v. Powell, 70 N. Y. 126; 
 Hargreaves v. Deacon, 25 Mich. 1 ; Burdick v. Cheadle, 26 Ohio St. 393. 
 
 ^Reardon v. Thmipson, 149 Mass. 267; Cusick v. Adams, 115 N. Y. 55; 
 Hardcastle v. South Yorkshire R. & R. D. Co. 4 Hurl. «& N. 67; Hounsell v. 
 Smyth, 29 L. J. N. S. C. P. 203, 7 C. B. N. S. 731; Pittsburg, Ft. W. & 
 C. R. Co. V. Bingham, 29 Ohio St. 364; Sweeny v. Old Colony & N. R. 
 Co. 10 Allen, 368; Knight v. Abert, 6 Pa. 472; Nicholson v. Erie R. Co. 41 
 N. Y. 525; Crogan v. Schiele, 53 Conn. 186, 1 New Eng. Rep. 311,
 
 Chap. III.] occuriER of premises adjoining street. 27 
 
 sons are consciously or unconsciously straying from the way.* 
 Nor less clear is the distinction between the case in which the ex- 
 cavation is made, or sometliing calculated to amuse or attract chil- 
 dren is done or left, at a place where the child has a right to be, 
 and one in which the same thing is done at a place where, in order 
 to reach the place of danger, the child becomes an intruder upon 
 the premises of another. Whoever, while passing along, or when 
 properly in, a public street, suffers an injury while exercising the 
 degree of care which the law requires of such person, by ice or 
 snow, by reason of an improperly constructed roof or negligence 
 in cleaning the same, or from material from the building or at- 
 tached to it becoming loose from the owner's negligence, falling 
 upon him ; or from the falling of a wall by reason of defective 
 construction, or its having become weakened by time or fire, and 
 suffered negligently so to remain," — whether a building has been 
 made unsafe by the agency of time or the acts of trespassers, where 
 it was within his power to prevent such condition, as, in either 
 evQnt, it is the owner's duty to keep his building in a safe condi- 
 tion,* — by falling into an excavation which has been made in or 
 near such street," or from obstructions carelessly placed upon the 
 sidewalk,* — is entitled to maintain an action for such injury against 
 the person making the excavation or causing the injury by a de- 
 fective building, etc. In such a case a duty is imposed upon such 
 person to make it safe in respect to all persons who have a right 
 to use the street. But in all these cases, a want of proper care on 
 the part of the occupier of the premises must be shown before a 
 
 ^Blyth V. Topham, Cro. Jac. 158; Knight v. Ahert, 6 Pa. 472; Hounsell 
 V. Smyth, 29 L. J. N. S. C. P. 303, 7 C. B. N. S. 731; Barnes v. Ward, 
 9 C. B. 392; Wettor v. Bunk, 4 Post. & P. 298. 
 
 ^Riley v. Simpson, 83 Cal. 217, 7 L. R. A. 622; Hannem v. Pence, 40 Minn, 
 127; Mairs v. Manhattan Real Estate Asso. 89 N. Y. 498; Anderson v. 
 East, 117 Ind. 126, 2 L. R. A. 712; Neffv. Paddock, 27 Wis. 546; Wilkiri- 
 son V. Beiroit Steel & Spring Works, 73 Mich. 405; Walsh v. Mead, 8 Hun, 
 387; Shipley v. Fifty Asso. 106 Mass. 194; Murray v. McShane, 52 3Id. 
 217; Garland v. Toicne, 55 N. H. 55; Hussey v. Ryan, 64 Md. 426, 3 
 Cent. Rep. 626; Salisbury v. Herchenroder, 106 Mass. 458. 
 
 ^Tucker v. Illinois C. B. Co. (La. Jan. 29, 1890), 7 So. Rep. 124. 
 
 *Malloy V. Uiberian Sav. & Loan Soc. (Cal. April 22, 1889) 21 Pac. Rep. 525; 
 Congreve v. Morgan, 18 N. Y. 84, followed in Bavenport v. Ruckinan, 37 
 N. Y. 568. Whether the covering to an opening in the sidewalk was 
 made and adjusted in a way that was reasonably safe and secure is for 
 the jury. Bickson v. Hollister, 123 Pa. 421. 
 
 ^Maddox v, Cunningham, 68 Ga. 431; Oleason v. Amsdell, 9 Daly, 398.
 
 28 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 liability can be imposed. Thus, where the owner of a building 
 was informed on Sunday that his walls were settling and they fell 
 on the next day, the owner could not be said to have neglected the 
 duty of care imposed on him to keep his building in safe condition, 
 unless the danger was so obvious that a reasonable and prudent 
 man, in his situation, whose personal safety and the security of his 
 property depended on the walls, would have taken more prompt 
 measures to secure them.* 
 
 Where two buildings, one of which was owned by the defend- 
 ant and whose side walls stood near each other upon adjoining 
 lots, were burned, portions of them remaining standing for six 
 months, at which time plaintiff was injured by the fall of de- 
 fendant's wall, while he was removing his own, it was held that 
 defendant could not be charged with any neglect of imposed duty, 
 unless it appeared that defendant knew of the contemplated re- 
 moval, or it was shown that defendant's wall was in such a condi- 
 tion that it would have fallen before the fire or removal of the 
 other wall." So where the defendant has used such care in qpn- 
 struction of the wall as persons of ordinary prudence would exercise 
 under the same circumstances, he is not liable where it falls dur- 
 ing an extraordinary rainstorm.* 
 
 Streets are open to persons of all ages, and children are and of 
 necessity must be permitted, to some extent at least, to go upon the 
 streets of towns and cities without incurring the imputation of neg- 
 ligence, or bringing their parents under so serious a reproach. It 
 would be intolerable to hold, as matter of law, that a parent, hav- 
 ing no knowledge of the presence or probability of danger, was, 
 nevertheless, guilty of negligence in permitting a child of reasona- 
 ble but immature judgment to pass beyond the door-yard into the 
 street without an attendant.* Therefore the owner of any machine 
 which he knows to be dangerous to children too young to know the 
 danger, and of too immature judgment or discretion to control their 
 
 ^Schwartz v. Oilmore, 45 111. 454. See fiote to Zoebisch v. Tarhdl, 87 Am. 
 
 Dec. 666. 
 ^Malwney v. Libbey, 123 Mass. 20. 
 ^ Gouts V. Neer, 70 Tex. 468. 
 *Birkett v. Knickerbocker lee Co. 110 N. Y. 507; McQarry v. Loomis, 63 
 
 N. Y. 104; Mangam v. Brooklyn B. Co. 38 N. Y. ^5; Indianapolis v. 
 
 Emmelman, 108 Ind. 530, 6 West. Rep. 566; Marsland v. Murray, 148 
 
 Mass. 191.
 
 Chap. III.] OCOUPIEE OF PREMISES ADJOINING STREET. 29 
 
 natural instinct to amuse themselves with anything that may at. 
 tract them as a plaything, and which he knows or ought to know 
 may attract them, and who knows it is so placed that it does attract 
 them to play with it, — is under a duty, as to such children, to ex- 
 ercise the degree of care which an ordinarily prudent person would 
 use to prevent its injuring them.' Whoever, therefore, does any- 
 thing in or immediately adjacent to a public street, park or locality 
 where children may rightfully congregate and are accustomed so to 
 do, calculated to attract children into danger, which they cannot 
 appreciate, or are too untrained and inexperienced to resist, owes 
 the imposed duty of protecting them against the temptation he 
 places before them, by suitably guarding the source of danger, or, 
 in case this cannot be done, by giving timely warning to their 
 parents or guardians of the existence of the danger." 
 
 "While, in the case of its turn-tables and trucks standing on its 
 tracks, by playing with which children are injured, it is competent 
 for a railroad company, in order to show that it exercised due care, 
 to show that it secured the turn-tables and trucks in the way cus- 
 tomary with all railroad companies, such proof is not conclusive 
 that due care was exercised,* 
 
 Where an elevator opened on a street by a sliding door, un- 
 guarded and open, and a child four years and a half old was in- 
 jured on approaching the door by a descending car, the owner was 
 held liable.* And where a child three years old was injured 
 while playing about a cogwheel, left revolving, unguarded and ex- 
 posed in an open, uninclosed space, some 20 feet from the high- 
 way, a recovery was sustained. The Iowa court in Wood v. In- 
 dejpendent School Dist.^ 44 Iowa, 27, where the action was against 
 
 ^O'Mnlley v. St. Paul, M. & M. R Co. (Minn. May 16, 1890) 45 N.W. Rep. 
 440; Omge City v. Larkins, 40 Kan. 206, 2 L. R. A. 56; Pittsbiinjh, C. c6 
 
 St. L. R. Co. V. Shields, 47 Ohio St. , 8 L. R. A. 464; Harriman v. 
 
 Pittsburgh, G. & St. L. R Co. 45 Ohio St. 11; Sio^ix City & P. R. Co. v. 
 Stov.t, 84 U. S. 17 Wall. 657f 21 L. ed. 745; Kansas C. R. Co. v. Fitz- 
 simmons, 22 Kan. 687; JV^agel v. Missouri P. R. Co. 75 Mo. 653; Eoansich 
 Y.Gulf, a & S. F. R. Co. 57 Tex. 126; Feefe v. Milwaukee & St. P. R. Co. 
 21 Minn. 207; Koons v, St. Louis (& I. M. R. Co. 65 Mo. 592. 
 
 ^Indianajwlis v. Emmelman, 108 Ind. 530, 6 West. Rep. 566; Chicago v. 
 Hesing, 83 111. 204; Chicago v. Major, 18 III. 349; Niblett v. Nashville, 12 
 Heisk. 684; Grates v. Thomas, 95 Ind. 361; McAlpin v. Powell, 70 N. Y. 
 126; Beck v. Carter, 68 N. Y. 283. 
 
 ^O'Malley v. St. Paul, M. <& M. R. Co. (Minn. May 16, 1890) 45 N. W. 
 Rep. 440. 
 
 *Mullaney v. Spence, 15 Abb. Pr. N. S. 319.
 
 30 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 tlie employer, the negligence being that of a contractor, declared 
 that while not holding that there may not be pieces of machinery so 
 peculiarly dangerous that a right of action would exist at common 
 law for injuries received from them, if left unguarded, it was not 
 thought that a well-driving machine left in the yard of a public 
 school-house was such machinery. 
 
 The Supreme Court of New Hampshire in Frost v. Eastern R. 
 Co., 64 N. H. 220, 4 New Eng. Rep. 527, states that it is not pre- 
 pared to adopt the doctrine of Sioux City (& P. R. Co. v. Stout, 
 84 U. S. 17 Wall. 657, 21 L. ed. 745, and cases following it, that 
 the owner of machinery or other property attractive to children 
 is liable for injuries happening to them when wrongfully inter- 
 fering with it on his own premises. It is said that one "is not 
 an insurer of the safety of infant trespassers. One having in 
 his possession agricultural or mechanical tools is not responsible 
 for injuries to trespassers by their careless handling ; " that one 
 owning a blueberry pasture or an artificial pond need not exercise 
 care in procuring gates and bars to protect straying children from 
 accidents. It is said that " the owner is under no duty to a mere 
 trespasser to keep his premises safe, and the fact that the tres- 
 passer is an infant cannot have the effect to raise a duty where 
 none otherwise exists. ' The supposed duty has regard to the 
 public at lai'ge and cannot wxll exist as to one portion of the pub- 
 lic and not to another under the same circumstances. In this 
 respect children, women and men are upon the same footing. In 
 cases where certain duties exist infants may require greater care 
 than adults, or a different care ; but precautionary measures hav- 
 ing for their object the protection of the public must, as a rule, 
 have reference to all classes alike.' " ' It seems hardly a fair con- 
 clusion from the premises that because the owner of a blueberry 
 pasture is not liable to trespassers who tear their clothing, that there- 
 fore one who places machinery upon his premises is freed from the 
 responsibility to an infant who may be attracted thereto acting un- 
 der a natural childish impulse of curiosity. In the present state of 
 society and the larger burdens that are imposed upon each mem- 
 ber of a civilized community to do nothing which will probably 
 work harm to his neighbor is it conclusive of the matter to say 
 
 ^Nolan V. New York, N. H. & H. B. Co. 53 Conn. 416, 1 New Eng. Rep. 826.
 
 Chap. III.] OCCUPIER OF PREMISES ADJOINING STREET. 31 
 
 tliat " the fact tliat the trespasser is an infant cannot liave the 
 effect to raise a duty where none otherwise exists ; " and that tlie 
 " supposed duty has regard only to the public at large and cannot 
 well exist as to one portion of the public and not to another under 
 the same circumstances ? In this respect children, women and 
 men are upon the same footing." * 
 
 In Rassenyer v. Michigan C. R. Co., 48 Mich. 204, it is said 
 that the law ought, under all circumstances where they become 
 important, to make allowances for any differences existing by 
 nature between men and women, and also for any that grow out 
 of their occupations, modes of life, education and experience. A 
 woman, for example, driving a horse on the highway, may be pre- 
 sumed somewhat wanting in the "amount of knowledge, skill, 
 dexterity, steadiness of nerve or coolness of judgment — in short, 
 the same degree of competency," which we may presume in a man ; 
 and the person meeting her under circumstances threatening col- 
 lision should govern his own conduct with regard to her probable- 
 deficiencies.' 
 
 In Snow V. Provincetown, 120 Mass. 580, a question of con- 
 tributory negligence was made against a woman who, in attempting 
 to pass a cart in a public way, which had commenced backing^ 
 towards her, accidentally fell over an embankment and was in- 
 jured. The following instruction by the trial judge to indicate 
 the degree of care required of the plaintiff was held unexception- 
 able : " Care implies attention and caution, and ordinary care is 
 such a degree of attention and caution as a person of ordinary 
 prudence of the plaintiff's sex and age would commonly and might 
 reasonably be expected to exercise under like circumstances." 
 
 In Bloomington v. Perdue, 99 111. 329, it was ruled : " Yet, 
 when the actor is a woman, an instruction that ' she is bound to 
 observe the conduct of a woman of common and ordinary pru- 
 dence ' cannot be held legally erroneous because of being thus 
 special." 
 
 In Hydraulic WorJcs Co. v. Orr, 83 Pa. 332, adjoining a factory 
 there was a private alley, which communicated with a public street 
 by a gate which was frequently left open by employes, though 
 
 Wolan V. Neio York, IV. H. & H. R. Co. 53 Conn. 416, 1 New Eng. Rep. 826. 
 'Citing Darnels v. Glegg, 28 Mich. 33, 42.
 
 -32 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 ■contrary to orders. In this alley, twenty-four feet from tlie street, 
 was a platform, to be raised and lowered in receiving and shipping 
 goods. This platform, when raised, rested against the wall, and 
 was held up only by its own slight inclination, having no fastening. 
 A child six years old, playing in the street, strayed into the alley 
 and was killed by the fall of the platform. The lessees of the fac- 
 tory were declared liable. This ground was stated : " Now can it 
 be righteously said that the owner of such a dangerous trap, held 
 by no fastening, so liable to drop, so near a public thoroughfare, so 
 often left open and exposed to the entries of persons on business, 
 by accident or from curiosity, owes no duty to those who will be 
 probably there? The common feeling of mankind (as well as the 
 maxim sic utere tuo ut alieniLm non laedas) must say this cannot 
 l3e true. That this spot is not so private and secluded as that a 
 man may keep dangerous pits or deadfalls there without a breach 
 of duty to society. On the contrary, the mind, impelled by the 
 instincts of the heart, sees at once that in such a place, and under 
 these circumstances, he had good reason to expect that one day or 
 other probably a thoughtless boy in the buoyancy of play would 
 be led there, and injury would follow, — especially when prompted 
 T3y knowledge that a fastening was needed.'" 
 
 It is said that one owes no duty to an intruder or trespasser 
 ■except not intentionally to harm him. Is this true as to a young 
 child known to be in danger of being injured ? Is there not an 
 active duty owing to protect the helpless child from known dan- 
 gers on one's own land? If this duty exist, the doctrine laid 
 down in the New Hampshire and Connecticut cases cannot be 
 true. As to the mature trespasser no duty of care is owing. The 
 land owner, however, must not become an active aggressor, by 
 exposing dangerous machinery unfastened where it will probably 
 attract children, but as to the child known to be exposed to danger 
 by one's own act the law of humanity, and therefore the common 
 law, demands care. The real question is not whether a duty is ow- 
 ing to a child, which under the same circumstances would not be 
 owing to a grown person, but, putting the case personally, whether, 
 knowing that an act of yours is liable to induce anyone to expose 
 himself to danger, it is not your duty to anticipate such action on 
 'This decisioa was approved in Oramlich v. Wurst, 86 Pa. 74.
 
 Chap. III.] OCCUPIER OF PREMISES ADJOINING STKEET. 33 
 
 his part and use care to avoid injuring him. If an act you are con- 
 templating, right in itself, will likely cause someone to expose him- 
 self to danger which he does not anticipate, it is your duty to take 
 care that such exposure does not prove injurious to him. In deter- 
 mining the question whether the act will induce such exposure, it is 
 your duty to consider the motives and impulses that induce action 
 by others who are likely to he influenced by your act. If men 
 may be misled in their judgment by your act, you must take 
 measures to warn them or to avoid injuring them by pro])er care. 
 If children from their known childish instincts and curiosity may 
 be led into danger, such care is due them also. 
 3
 
 CHAPTER IV. 
 NEGLIGENT ACT CONiSTlTUTING A NUISANCE. 
 
 Sec. 9. Care Required lohere the Act if Unautliorized would he a 
 
 Nuisance. 
 Sec. 10. Liability where Duties are Transferred, the Doing of Which 
 
 Constitutes a Nuisance. 
 
 Section 9. — Cctre Required ivhere the Act if Unau- 
 thorized would he a Jfuisance. 
 
 Where an act is authorized, the doing of which, but for such 
 authority, would constitute a nuisance, the least departure from 
 the manner in which the work is to be performed, or the least 
 excess of authority in the exercise of the power, will, to that ex- 
 tent, amount to a nuisance. The greatest care must be exercised 
 in the doing of such authorized act to avoid inflicting injury to 
 the person or property of others. Thus when a railroad com- 
 pany has obtained legal authority to put its tracks upon a 
 public street, it must so use its privilege as to do the least 
 possible injury to abutting property owners, and to the gen- 
 eral public, who have an equal right upon the street. It must 
 scrupulously avoid any violation of the contract under which 
 its presence is permitted. The use of a street as a switch-yard 
 would not be authorized by an authority to lay down and operate 
 a track for ordinary railway purposes. So the unreasonable stop- 
 page of trains on a street, or the parking of its cars on the street, 
 and any unnecessary noise or smoke, would be acts in excess of 
 the use accorded, and therefore illegal and a nuisance. Mr. 
 "Wood, in his work upon Railroads, lays down the sound and rea- 
 sonable rule, in the following words: "It may be stated as a 
 general rule that whatever is authorized by statute within the 
 scope of legislative powers is lawful and therefore cannot be a 
 nuisance. But this must be understood as subject to the qualifi- 
 cation that, when an act that would otherwise be a nuisance is 
 authorized by statute, it only ceases to be a nuisance so long as it 
 is within the scope of the powers conferred. If the power con-
 
 Chap. IV, J LIABILITY WHERE DUTIES ARE TKANSFEliUED. 35 
 
 ferred is exceeded, or exercised in another or different manner 
 from that prescribed by law, it is a nuisance as to such excess and 
 difference in the mode of its exercise.' "Whenever an act is au- 
 thorized to be done in a hi<^li\vaj that wonhl otherwise be a nui- 
 sance, the person or company to wliom the power is given is not 
 only bound to exercise it strictly within the provisions of the law, 
 but also with the highest degree of care, to prevent injury to 
 persons or property of those who may be affected by such acts.'" 
 
 A person or corporation authorized by the Legislature to do an 
 act will be protected from all responsibility, if such act is done 
 carefully and skillfully, although, without legislative authority, 
 the act would have been a nuisance.'' 
 
 What would otherwise be a nuisance in or on a public highway 
 may become a legal easement therein by grant or prescription, 
 subject to the obligation of using it with due care, so as not to 
 permanently interfere with the use of the highway or cause injury 
 to travelers upon it ; and in such case the owner of the easement 
 is only liable for want of due care and is not an insurer against 
 injury to others by its use." 
 
 Section lO.—LiahUUy where Duties are Trans- 
 ferred, the Domg of Which Coiistitates a 
 Kwisanee. 
 
 Where a person has ordered a certain thing to be done, the 
 doing of which imposes upon him the duty of seeing that some- 
 thing further be done, lie cannot escape responsibility for the 
 
 ^MosTder v. Utica & S. B. Co. 8 Barb. 437; Wellcome v, Leeds, 51 Me. 313; 
 State V. Tapper, Dudley, L. 135; Renwick v. Morris, 8 Hill, 631; Uaghes 
 V. Providence & W. R. Co. 2 R. I. 493; Com. v. Nashua & L. B. Corp. 2 
 Gray, 54; Req. v. Eastern Counties R. Co. 2 Q. B. 569; State v. Morris & 
 E. B. Co. 25 N. J. L. 437; Rex v. Morris, 1 Barn. & Ad. 441. 
 
 '2 Wood, Railway Law, 970; Iron Mountain R. Co. v. Bingham, 87 Tenn. 
 522, 4 L. R. A. 622; New York v. Bailey, 2 Denio, 440; Wool/ v. Beard, 
 8 Car. & P. 373; Hawkins v. Cooper, 8 Car. & P. 473; Boss v. Litton, 5 
 Car. & P. 407; Brand v. Troy & S. R. Co. 8 Barb. 369; Bordentown & 
 S. A. Tump. Co. V. Camden & A. R. & Transp. Co. 17 N. J. L. 314; 
 King v. Morris cfe E. R. Co. 18 N. J. Eq. 397; State v. Morris & E. R. 
 Co. 25 N. J. L. 437; Rex v. Morris, 1 Barn. & Ad. 441. 
 
 ^Taylor v. Baltimore & 0. B. Co. 33 W. Va. 39; People v. Kerr, 27 N. Y. 
 188; Leigh v. Westerveli, 2 Diier, 618; Brooks v. Boston, 19 Pick. 174. 
 
 *See Lee v. Vacuum Oil Co. 54 Hun, 156; Irvin v. Wood, 4 Robt. 138, and 
 cases last cited.
 
 36 IMPOSED DUTIES, PEKSONAL. [Part I. 
 
 nonperformance of tliat duty by showing that he ordered his 
 servant to perform it, and his servant neglected to do so. 
 
 The defendant directed his workmen to remove several sticks 
 of timber from one street to another and then to put them in his 
 yard. His workmen removed them from the street where they 
 were and unloaded them upon the sidewalk near the curb in front 
 of the yard and there left them. Several days afterwards the 
 plaintiff, while passing along the sidewalk with due care, after 
 dark, stumbled over the timbers and received an injury for which 
 she sued. It is plain that when defendant's workmen unloaded 
 his wagon in front of his yard, they were obeying his directions, 
 and the depositing the timbers on the edge of the sidewalk, as a 
 step in their transfer from the wagon to the yard, was neither a 
 tortious nor a careless act and was in reasonable pursuance of 
 defendant's orders. When, however, that was done, it was incum- 
 bent on defendant to see that the timbers were not left for an 
 unreasonable length of time upon the public highway, and it was 
 a duty resting upon defendant personally, which was never per- 
 formed, and through the nonperformance of which the plaintiff 
 sustained her injury.^ The case comes within the familiar rule that 
 when duties are transferred, the doing of which creates a public 
 nuisance by unlawfully obstructing or interfering with the free 
 use of the highway or otherwise, he upon whom the duty was 
 by law imposed becomes answerable in damages to those who suffer 
 sj^ecial injury therefrom.* 
 
 This question generally arises where a man is doing or causing 
 work to be done on his own premises, but where he has actually 
 entered upon the premises of another man to take down a parti- 
 tion wall, it is hardly necessary to say that that kind of work is, 
 necessarily and jper se, a nuisance. In the first place, it causes 
 inevitable temporary disarrangement and inconvenience ; it im- 
 perils the safety of the adjoining building and very often results 
 in its permanent injury ; and in a case of that kind it would seem 
 to be extremely unjust that the building owner should get rid of 
 his responsibility by contracting with somebody else to prosecute 
 
 ^Carlin v. Driscoll, 50 N. J. L. 28, 10 Cent. Rep. 176. 
 
 ^Ilarlow V. Humiston, 6 Cow. 189; Runyon v. Bordine, 14 N. J. L. 472; Tem- 
 perance Hall Asso. v.. Giles, 33 N. J. L. 260; McAndrews v. Cullerd, 42 N. 
 J. L. 189.
 
 Chap. lY.] LIABILITY WIIEKE DUTIES ARE TKANSFERRKD. 37 
 
 this work, especially as his contractor, although a reputable and 
 skillful builder, may be pecuniarily irresponsible.' 
 
 Then, another exception to the rule relieving the owner of lia- 
 bility, would be where a party is under an antecedent obligation 
 to do a thing, or to do a thing in a particular way. In that case 
 he cannot get rid of his responsibility by deputing it to somebody 
 else. That principle is illustrated in the case of Baltimore v. 
 G' Donnelly 63 Md. 110. There a contractor had been employed 
 to do certain work on one of the public streets. An excavation 
 had been made, but it was imperfectly protected, and a person fell 
 into it and was injured. In the court of appeals the appellant 
 contended that inasmuch as the work was being done by an inde- 
 pendent contractor pursuing an employment wholly independent 
 of the cit}^, who was free to exercise his own judgment as to the 
 mode of conducting the work and the assistants he was to employ, 
 the rule of respondeat sujjerior did not apply, and that the con- 
 tractor alone was responsible, if anyone was. In reply, the appellee 
 admitted that, ordinarily, as a condition precedent to holding a 
 superior amenable, the relation of master and servant must be 
 shown to exist, and that in the case of a contractor employing 
 others to do the work these sub-employes cannot be strictly re- 
 garded as servants of the city ; but he insisted that another rule 
 applied which fixed the responsibility of the city in this case. That 
 rule he insisted is this : That where the person for whom the work 
 is to be done is under a j)re-existing obligation to have the work 
 done in a particular way or to have certain precautions against 
 accident observed, he cannot be discharged by creating the rela- 
 tion between himself and another of employer and contractor. 
 The learned judge sitting in that case below regarded the appel- 
 lant as under such pre-existing obligation, and so instructed the 
 jury, and that ruling was presented for review ; and the court 
 atiirmed the ruling. 
 
 This kind of case is also distinguishable from those in which a 
 man occasions an injury to a neighbor by work on his own premises, 
 as by excavation. It seems to be pretty well settled that a man 
 has a right to support his own land by the adjoining land, and if 
 his neighbor digs down his land so as to deprive him of that sup- 
 
 ^Fowler v. Saks (D. C. Mar. 24. 18J0) 7 L. R. A. 649.
 
 38 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 port so tliat his land caves in, he has a right of action, although 
 his neighbor may exercise all the care and skill he can. He is 
 absolutely bound to make good the damages.' But a man, unless 
 in certain instances, as where he has a clear right by prescription 
 or otherwise, has no right to the support for buildings that he 
 loads his land with in that way. The law then requires that a 
 man who excavates his own land at the risk of liis neighbor's 
 buildings must exercise proper care and skill f but on the other 
 hand the authorities also hold that even in that case this duty of 
 exercising care and skill cannot be deputed to a contractor so as 
 to relieve the owner of responsibility. 
 
 In the case of Bower v. Peate, L. R. 1 Q. B. Div. 321, it 
 was held that where one ordered work even on his own premises 
 which would naturally threaten injurious consequences to his 
 neighbor, that is, pulling down a house and the excavation of 
 land, he was bound to see to the doing of all that was necessary 
 to prevent it, and could not relieve himself from that responsibility 
 by employing a contractor. 
 
 In Tarry v. Ashton, L. R. 1 Q. B. Div. 314, it was held that 
 one keeping a lamp suspended in front of his house on a j^ublic 
 highway was bound to keep it in a safe condition, and was not 
 protected from the consequences of neglect by employing an 
 independent contractor to attend to it. 
 
 ^Moellering v. Evans, 121 Ind. 195, 6 L. R. A. 449; Baltimore & P. B. Co. v. 
 Beaney, 42 Md. 117; Farrand v. Marshall, 21 Barb. 409; Qilmore\. Dris- 
 coll, 122 Mass. 199; Thurston v. Hancoek, 12 Mass. 220; Foley v. Wyeth, 
 2 Allen, 131; Hwnphries v. Brogden, 12 Q. B. 739; Brown v. Robins, 4 
 Hurl. & N. 186; Northern Transp. Go. v. Chicago, 99 U. S. 635, 25 L. ed. 
 336; Smart Y. Morton, 5 El. & Bl. 30; Aston v. Nolan, 68 Cal. 269; Oneil 
 V. Harkins, 8 Bush, 650; Beard v. Murphy, 37 Vt. 99, 86 Am. Dec. 693; 
 Mayhew v. Burns, 103 Ind. 328; Quest v. Reynolds, 68 111. 478, 18 Am. 
 Rep. 570; Mamer v. Lussem, 65 111. 484; Dyer v. St. Paul, 27 Minn. 457; 
 Bushy V. Holthaus, 46 Mo. 161; McGuire v. Orant, 25 N. J. L. 357, 67 
 Am. Dec. 49; Shafer v. Wilson, 44 Md. 268; Quincy v. Jones, 76 111. 231, 
 20 Am. Rep. 243; Stevenson v. Wallace, 27 Gratt. 77; Boothby v. Andros- 
 coggin & K. R. Co. 51 Me. 318; Charless v. Rankin, 22 Mo. 566. But be 
 may excavate to the line of his lot without subjecting himself to an ac- 
 tion unless damage actually results to the adjacent soil. Lasala v. Rol- 
 brook, 4 Paige, 169, 25 Am. Dec. 524. 
 
 ^Trower v. Chadioick, 3 Bing. N. C. 334; Panton v. Holland, 17 Johns. 92, 8 
 Am. Dec. 369; Dodd v. Holme, 1 Ad. & El. 493; Haines v. Roberts, 7 El. 
 & Bl. 625; Thurston v. Hancock, 12 Mass. 220. But this want of care will 
 not be presumed from the mere falling of the building upon the land to 
 the line of which the excavation has been made. Ward v. Andrews, 3 
 Mo. App. 275.
 
 Chap. lY.] LIABILITY WHERE DUTIES ARE TRANSFERRED. 39 
 
 In Hughes v. Percival, L. R. 8 App. Cas. 443, wliere the 
 defendant took down his own house, in doing which his contractor 
 cut into the party-wall between him and his neighbor, — not even 
 attempting to remove the party-wall, — and thereby caused the 
 builder's house to fall and drag down the plaintiff's house, it was 
 held that the law cast the duty on the defendant to see that skill 
 and care were exercised in the operation, and he could not avoid 
 the consequences by delegating the performance to a third person.* 
 Kor can he avoid liability where, although without any negligent 
 act, he causes the soil or buildings upon his own land to fall upon 
 his neighbor's land, as by blasting thereon." If that rule operates 
 where a man is building on his own land, with how much more 
 force ought it to obtain where he is actually invading his neigh- 
 bor's land and temporarily destroying part of his property V 
 
 But on the other hand, if the work, though of a dangerous 
 nature, may be done in a lawful manner, and is not in the public 
 highway,* and it is let out by contract, the owner of the property 
 on which the work is performed will not be liable for injury re- 
 sulting from the want of skill in the manner in which the work is 
 done.' If the injury results from the nature of the work itself, 
 both owner and contractor are liable.* 
 
 1 See also Lancaster v. Conn. Mut. L. Ins. Co. 92 Mo. 460, 10 West. Rep. 409; 
 Oettwerth v. Hedden, 30 La. Ann. 30, 
 
 ^Wright v. ComiyUm, 53 Ind. 337; Hay v. Cohoes Co. 2 K Y. 159; Tremain 
 V. Cohoes Co. Id. 163; Gardner v. Heartt, 2 Barb. 165; Gourdier v. Cor- 
 mack, 2 E. D. Smith, 200. 
 
 ^Fowler v. Saks (D. C. Mar. 24, 1890) 7 L. R. A. 649. 
 
 ^Bobbins v, Chicago, 71 U. S. 4 Wall. 657, 18 L. ed. 427; Chicago v. Robhins, 
 67 U. S. 2 Black, 418, 17 L. ed. 298. 
 
 ^Peachey v. Rowland, 13 C. B. 182, 22 L. J. N. S. C. P. 81. 
 
 *Earl V. Beadleston, 10 Jones & S. 294; Hundhausen v. 5(;n(f , 36 Wis. 29 ; 
 Bobbins v. Chicaio, 71 U. S. 4 Wall. 657, 18 L. ed. 427; New Orleans. M. 
 & C. R. Go. V. Hanning, 82 U. S. 15 Wall. 658, 21 L. ed. 223; St. Paul 
 Water Co. v. Ware, 83 U. S. 16 Wall. 576, 21 L. ed. 488; District of Col- 
 umbia V. Baltimore & P. R. Go. 1 Mackey, 316, 317; O'Rourko v. Hart, 7 
 Bosw. 511, 9 Bosw. 301.
 
 CHAPTEE Y. 
 
 NUISANCES, OWNER OR OCCUPIER; HIGHWAYS. 
 
 Sec. 11. LiaUUfy of Oioner or Occiqner of Premises for Nuisance 
 thereon, and for Acts of Negligence. 
 
 a. Owner or Tenant Creating a Ntdsance and Demising or 
 
 Underleasing the Premises. — Use as a Nuisance. 
 
 1. Owner Creating or Purchaser or Devisee Continu- 
 
 ing Nuisance. 
 
 2. Nuisance Occurring during Term of Lease. — 
 
 Covenant to Rejxdr. 
 
 b. Highivays. 
 
 c. Encroachments upon Highways. — Nuisances. 
 
 d. Pullic Nuisances on Highzoays. 
 
 e. Piiblic Nuisances ; Abatement thereof . 
 
 i. Injunction to Restrain Nuisances in Streets. 
 
 Section 11. — Licthility of Owner or Occupier of Prem- 
 ises for JYuisance thereon, and for Acts of 
 JVegligence. 
 
 a. Oivner or Tenant Creating a JYuisance and De- 
 mising or Underleasing the Fi'emises.— Use as 
 a Jfwisance. 
 
 Loose expressions have crept into some of the decisions to the 
 effect tliat a public nuisance may be abated by anyone. No one 
 can lawfully abate a ]3urely public nuisance. The correct rule is 
 stated by Chief Justice ^\i2iW, in Brown v. Perkins, 12 Gray, 100, 
 that the true theory is that an individual may abate a private nui- 
 sance injurious to him, when he could else bring an action ; and 
 also when a common nuisance obstructs his individual right, he 
 may remove it to enable him to enjoy that right ; or as in effect 
 ruled in Brown v. PeGrof, 50 K^. J. L. 409, 12 Cent. Eep. 818, 
 he may not volunteer to right a public wrong. Not until the 
 public nuisance become to him a private one may he put it aside 
 without invoking the legal tribunals. 
 
 If a nuisance is created, and anyone is injured by the nuisance 
 in a particular manner, and not in common with the public, an
 
 Chap. Y.] OWAEK OR TENANT CKEATING A NUISANCE. 41 
 
 action of negligence will usually lie.' Generally speaking the per- 
 son responsible for a nuisance is he who is in occupation of the 
 premises on which it exists. It may be that others also may be lia- 
 ble.' It is not the general rule that an owner of land is, as such, re- 
 sponsible for any nuisance thereon. It is the occupier, not merely 
 the person who physically occupies the building, but the person 
 who occupies it as tenant, having the control of it, and being as to 
 the public under the duty of keeping it in repair,' and he alone, 
 to whom such responsibility generally and prima facie attaches.* 
 
 In Martin v. Pettit, 117 N. Y. 118, 5 L. R A. 794, the action 
 was for injuries occasioned to the plaintiff by falling down a 
 flight of steps leading from the sidewalk of the street into the 
 cellarway of a building. The complaint charged that these injuries 
 were caused solely through the negligence of the defendant in 
 permitting that part of his premises to remain unprotected and in 
 an unsafe atid dangerous condition, and the case illustrates the 
 different grounds of liability in cases of negligence or nuisance. 
 The proof established the following state of facts : The plaintiff 
 was walking by the defendant's building on the north side of 
 Thirteenth Street, between Ninth Avenue and Hudson Street, in 
 the City of New York, on a Sunday morning in June, 1884. 
 AVhen opposite the flight of steps, he stepped to one side to- 
 pass by some men, who were standing at that point of the side- 
 walk. He attempted to pass between them and the building, and 
 in so doing fell down the steps. His eyesight was defective, and 
 that may have accounted for his failure to observe the cellar 
 opening, but whether it was or not was held to be immaterial. 
 The building had come into the defendant's possession within 
 the previous six months, and covered the block. Around it was 
 an open area separating it from the street, and the steps in ques- 
 tion led from the sidewalk of the street into this area and so into 
 
 ^Barnes v. Ward, 9 C. B. 393; Hounsell v. Smyth, 7 C. B. N. S. 731. 
 
 ^Gilliland v. Chicago & A. B. Co. 19 Mo. App. 411; Hndley v. Taylor, L. 
 R. 1 C. P. 53; Norton v. Wiswall, 26 Barb. 618; Weston v. Tailors of 
 Potterrow, 14 F. C. 1232; Morris v. Broioer, Anth. N. P. 868. 
 
 ^Cunningham v. Cambridge Sav. Bank, 138 Mass. 480. 
 
 *Kalis V. Shattuck, 69 Cal. 593; Boston v. Oray, 144 ]VIass. 53; Handyside v. 
 Powers, 145 Mass. 123; Texas & P. R. Co. v. Mangum, 68 Tex. 342;. 
 Pretty v. Bickmore, L. R. 8 C. P. 401; Kirby v. BoyMon Market Asso. 
 14 Gray, 249; Lowell v. Spaulding, 4 Cash. 277; Oakham v. IloWrook, 11 
 Cush. 299; Qilliland v. Chicago & A. B. Co. 19 Mo. App. 411.
 
 42 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 the cellar of the building. This cellar had been leased by the de- 
 fendant, and the tenant was in possession and actual occupation. 
 The lease was in writing, and gave no right to defendant to use that 
 part of the premises, or the steps in question. The building had 
 been undergoing repairs and alterations at the defendant's hands, 
 but they had been completed in this particular part, except that cer- 
 tain wooden doors to guard the entrance by this flight of steps had 
 not yet been completed and put up. Temporarily the defendant 
 had furnished and put over the opening an iron grating, weigh- 
 ing some one hundred fifty pounds, which extended from the 
 upper step of the flight to the wall of the building, at an angle. 
 In order to gain access to the tenant's cellar, this iron work had 
 to be lifted up and removed. The flight of steps was an ordinary 
 one, and had been there for years. A watchman was employed 
 by the defendant to watch the outside of the building, and he was 
 examined in behalf of the plaintiff. His instructions were, among 
 other things, to see that this iron cover to the cellarway was kept 
 in place. On the morning in question it had been securely in 
 place, but while the watchman was on his round, and before his 
 circuit was completed, someone removed it, and it was out of place 
 when the plaintiff came by. This flight of steps extended into 
 the sidewalk, and beyond the railing of the area about eighteen 
 inches, but this feature was not considered as involving any par- 
 ticular consequences. The complaint did not charge the defendant 
 with maintaining a nuisance, and the trial did not proceed upon 
 any such theory of liability. In fact the judge who presided at the 
 trial charged the jury that the plaintiff had chosen to base his 
 action upon the charge of direct negligence, and not upon that of 
 maintaining or continuing a public nuisance ; and he left it to the 
 jury to say whether the accident was caused exclusively by the 
 negligence of the defendant, or by those who were acting for him. 
 In this the plaintiff acquiesced. I^o cause of action arises against 
 the defendant for negligence, unless he has violated some legal 
 duty resting upon him to exercise care with respect to the use or 
 •enjoyment of his property, and it is said that it does not appear 
 that he could have acted any more carefully or prudently to- 
 wards preventing such an accident, under the- circumstances, as 
 he was not in possession of the premises and had no control
 
 Chap. Y.] OWNER OK TENANT CREATING A NUISANCE. 
 
 43 
 
 over tliem. He did undertake to watch the outside of the build- 
 ing, and in performance of that undertaking placed a substantial 
 iron grating over the cellar entrance, of such a nature that to 
 enter one had to lift it up and - to one side ; and a watchman 
 was on duty day and night to see that the grating was in its 
 proper place. The employment of a watchman devolved no 
 greater responsibilities upon the owner than he was already 
 under in legal contemplation. The watchman's duties were 
 not those of a janitor and had no relation to the mainten- 
 ance or care of the building, nor further than as testified to. 
 He policed the outside of the building and he was instructed to 
 watch this temporary covering to the tenant's cellar entrance. 
 This covering was removed when the watchman's back was 
 turned and he was on his round. The defendant did not author- 
 ize and did not know of its removal nor did he have any notice 
 of it, and, of course, could have had none, for it was suddenly 
 done. It is therefore thought reasonable to presume that it was 
 taken up by the occupant, or by one of his servants; that if 
 the cover had remained as it was through the night and in the 
 morning previous to the time of this occurrence the accident 
 could not have happened ; and, as matter of law, the defendant 
 was not liable for the consequences to a stranger of the wanton or 
 careless act of some other person not in his employ. As he was 
 shown to have done all that a careful man could have done to 
 guard the approach to the tenant's premises, pending the comple- 
 tion of the permanent doors which he was to furnish, and the 
 occurrence was one which might as well have happened had 
 the permanent doors been on and the tenant, or his servant, had 
 left them open, the court declare from the facts that there is ab- 
 solutely nothing to show that any more effective device could 
 have been adopted under the circumstances of the case, and 
 that the closest sifting of the evidence leaves no residuum out 
 of which the jury could fairly extract any inference of neglect on 
 the defendant's part. It is determined, therefore, that this is a 
 case where the law can grant no relief to the plaintiff against the 
 defendant ; for the only ground is, in reality, that he is the owner 
 of the premises, and in all cases where it is sought to hold the 
 owner of property liable for injuries occurring to a stranger,
 
 44 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 on the ground of negligence, there must be evidence in tlie case 
 that he was guilty of some act of omission or commission, froiri 
 which a jury might reasonably infer fault on his part, and nothing 
 less than that will satisfy the demands of the rule of law in such 
 cases. The law, it is declared, is reasonable, and does not demand of 
 an owner of property more than the exercise of ordinary care with 
 respecL" to the rights of third persons. A reference to such recent 
 cases as Wolf v. Kilpatrich, 101 K T. 146, 2 Cent. Kep. 81; Ed- 
 wards V. New York & H. R. Co. 98 N. Y. 245, — and many others, 
 will show that it would be a violation of well-established rules of 
 law to allow juries to determine upon mere surmise and conjecture 
 as to the existence of negligence on the part of a defendant. The 
 evidence must fix or tend to fix upon a defendant, in such cases, 
 some personal fault, or its equivalent, to warrant a submission of 
 the question of liability to the jury. 
 
 It is frequently said that where the owner leases premises which 
 are a nuisance, or must in the nature of things become so hj their 
 user, and receives rent, then, whether in or out of possession, he is 
 liable.' But it will be found that all or nearly all the cases in 
 which this has been said are cases in which at the time of the de- 
 mise the landlord had notice of the nuisance. In Conhocton Stone 
 Road V. Buffalo, W. T. c& K R. Co., 51 N.Y. 573, the defendant 
 demised the premises with the nuisance thereon, and yet it was 
 held not to be liable because there was no proof of notice. One 
 creating a nuisance on his own premises cannot escape the liability 
 by demising the premises," because, before his assignment over, he 
 was liable for all the consequential damages and could not discharge 
 himself by granting it over.^ This doctrine is reconciled in the 
 proposition that where the injury is the result of the misfeasance 
 or nonfeasance of the lessor, the party suffering damage may sue 
 him.* 
 
 ^Albert v. State, 66 Md. 325, 6 Cent. Rep. 447; Swords v. Edgar, 59 N. Y. 
 
 28; Joyce v. Martin, 15 R. I. 558, 4 New Eng. Rep. 797; Davenport v. 
 
 Riickman, 37 N. Y. 568; Dalay v. Savage. 145 Mass. 38, 4 New Eng. Rep. 
 
 863; Oodley v. Hagerty, 20 Pa. 387; Carson y. Godley,2Q Pa. Ill; Staple 
 
 V. Spring, 10 Mass. 72; Bouse v. Metcalf, 27 Conn, 631; Anderson y. 
 
 Dickie, 26 How. Pr. 105. 
 ^Rankin v. Ingicersen, 49 N. J. L. 481, 8 Cent. Rep. 371; Rosewell v. Prior ^ 
 
 2 fSalk. 460, 1 Ld. Raym. 713. 
 ^Rosicell V. Prior, 12 Mod. 639. 
 *Todd V. Fliglit, 9 C. B. N. S. 377.
 
 Chaf). Y.] OWNER OB TENANT CKEATING A NUISANCE. 45 
 
 In Nelson v. Liverpool Brewery Co., L. R. 2 C. P. Div. 311, it 
 is expressly said that if tlie landlord lets premises in a rninous 
 condition, he is liable to strangers, and in Saltonstall v. Banl-er, 
 8 Gray, 195, 197, the decisions in Rich v. Basterfield, 4 C. B. 
 783, and in Bex v. Pedltj, 1 Ad. & El. 822, are approved, and it 
 is said that if the nuisance existed at the time of the demise, the 
 landlord is liable.' 
 
 In Jackson v. Arlington Mills, 137 Mass. 277, the landlord 
 was held liable for the acts of his tenants in polluting the- water 
 of a brook by discharging into it the sink water from the houses 
 let, and the reason given was that the houses let were intended to 
 be used by the tenants in the manner in which they were used, 
 and that if the landlord did not retain the control of the water 
 used by the tenants, he had, by the letting, authorized the use 
 which the tenants made of the water.' 
 
 In Walsh v. Mead, 8 Hun, 387, Daniels, J., said : " The erec- 
 tion and maintenance of a nuisance is a wrong, and by leasing the 
 building affected by it to another person, the owner continues it, 
 and stipulates for the enjoyment of the profit from it." 
 
 Where the tenant created the nuisance, and underleased, he is 
 held Hable, as his transfer confirms the continuance of the nui- 
 sance.^ So where an owner lets premises in a ruinous and danger- 
 ous condition." This rule was established in the leading case of 
 Rosewell v. Prior, 2 Salk. 460, 1 Ld. Raym. 713. That was an 
 action against one who had erected a shed which stopped plaintiff's 
 ancient lights. There had been a recovery against him for the 
 erection, and this action was for a continuance of the nuisance. 
 The erection was by a tenant for years, who had afterward made 
 an under-lease to one S. The question was whether, after a recov- 
 ery against the first tenant for years for the erection, an action 
 would lie against him for the continuance after he had made an 
 underlease. It was held that the action would lie, upon the 
 ground that defendant had transferred the premises with the origi- 
 nal wrong, and this demise atiirmed the continuance of it. It was 
 
 'See Todd v. Flight, 9 C. B. N. S. 377. 
 
 «See also Owings v. Jones, 9 Md. 108; Peoria v. Simpson, 110 111. 294, 300; 
 
 Irvine v. Wood, 51 N. Y. 224; Durant v. Palmer, 29 N. J. L. 544. 
 ^Rosewell v. Prior, 2 Salk. 460. 
 *Todd V. Flight, 9 C. B. N. S. 377.
 
 46 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 also licld that the action would lie against either tenant, at plain- 
 tiff's election. 
 
 There are numerous authorities which hold that a redemise of 
 premises in an unsafe condition imposes upon the landlord as full 
 a liability to third persons injured thereon as an original lease of 
 them in such condition.* 
 
 In Todd V. Flight, 9 C. B. K. S. 377, it was held that an action 
 lies against the owner of premises who lets them to a tenant in a 
 ruinous and dangerous condition, and who causes or permits them 
 to remain so until by reason of the want of reparation they fall 
 upon and injure the house of an adjoining owner. 
 
 In Nelson v. Liverpool Brewery Co., L. R. 2 C. P. Div. 311, 
 it was held that a landlord is liable for an injury to a stranger by 
 the defective repair of demised premises only when he has con- 
 tracted with the tenant to repair, or where he has been guilty of 
 misfeasance, as, for instance, in letting the premises in a ruinous 
 condition ; and that in all other cases he is exempt from responsi- 
 bility for accidents happening to strangers during the tenancy. 
 Lopes, e/i, writing the opinion said : " We think there are only 
 two ways in which landlords or owners can be made liable in the 
 case of injury to a stranger by the defective repairs of pi-emises 
 let to a tenant, the occupier, and the occupier alone, being prima 
 facie liable : first, in the case of a contract by the landlord to do 
 repairs when the tenant can sue him for not repairing ; secondly, 
 in the case of a misfeasance by the landlord, as, for instance, 
 where he lets the premises in a ruinous condition. In either of 
 these cases we think an action would lie against the owner." 
 
 In "Woodfall's Landlord and Tenant (13th ed.), 735, it is said : 
 " As regards the liability of landlords to third persons, it may be 
 taken as a general rule that the tenant and not the landlord is lia- 
 ble to third persons for any accident or injury occasioned to them 
 by the premises being in a dangerous condition ; and the only 
 exceptions to the rule appear to arise when the landlord has either 
 (1) contracted wnth the tenant to repair ; or (2j where he has let 
 the premises in a ruinous condition ; or (3) where he has express- 
 ly licensed the tenant to do acts amounting to a nuisance." 
 
 'Taylor, Land, and T. § 175; Bigelow, Lead. Cas. in Torts, 475; Gandy v. 
 Jubber, 5 Best &, S. 78, 485, 10 Jur. N. S. 652; Whalenv. Gloucester, 6 
 Thomp. & C. 135, 4 Hun, 24; State v. Williams, 30 N. J. L. 113.
 
 Chap, y.] OWNER OR TENANT CREATING A NUISANCE. 47 
 
 In Leonard v. Storer^ 115 Mass. 86, the plaintiff was injured 
 wliile passing along the public street in Boston by the falling of 
 snow and ice upon her from a house belonging to defendant, but 
 leased bj him nearly twelve years before for the term of fifteen 
 years to the tenant, who by the tei-ms of the lease was " to make 
 all needful and proper repairs, both external and internal." The 
 plaintiff sought to charge defendant because the roof was so con- 
 structed that the snow and ice collecting upon it would naturally 
 slide into the street. It did not appear that the tenant " might 
 not have cleaned the roof by the exercise of due care, or that he 
 could not, by proper precautions, have prevented the accident," 
 nor that " any neglect of duty or wrongful act on the part of the 
 defendant was the cause of the injury ;" and the court affirmed the 
 judgment for defendant. The ground of the decision is not very 
 clearly set forth, but it seemed that the defendant was discharged 
 because the injury was attributable to the negligence of the tenant 
 instead of any defect in the structure of the house, or, if there was 
 any defect, because it was for the tenant alone, under the lease, to 
 remedy it. It will be observed that the defendant, if charged, 
 would have been charged on the ground that the house when let 
 was a public nuisance, and the case would apply to the class of 
 cases in which lessors are held to respond in damages because the 
 premises from which the injuries were received were in such a 
 state as to be a nuisance, public or private, when let. 
 
 In Mellen v. Morrill^ 126 Mass. 545, the defendant was the 
 owner of a dwelling-house which he let by parol to the tenant, 
 who occupied it for a dwelling-house and market. The walk from 
 the street to the door led along an embankment and was unsafe 
 for the want of a railing. The plaintiff in going along the walk 
 in the night time, for the purpose of settling an account with the 
 tenant, fell down an embankment and was injured ; the court held 
 that the defendant was not liable, but that it was the duty of the 
 tenant if he usod the premises so as impliedly to invite people to 
 visit them in the night "to make them safe by railing or by light, 
 when they are appurtenant." It did not appear that the defend- 
 ant let the premises to be used as a market. Moreover, it would 
 seem that they might have been safely used if the tenant had 
 simply set out a light or other warning.' 
 
 iSee mch v. BasterfieU, 4 C. B. 784.
 
 48 IMPOSED DUTIES, PEKSONAL. [Part I. 
 
 In Irvine v. Wood, 51 N". T. 224, the cause of injury was a 
 coal-liole, excavated in a city sidewalk and defectively covered, 
 which was used by lessees of the premises. The lessor did not 
 contest his liability. The court held that the lessees were liable 
 jointly with him. The court, in giving the judgment, said : " The 
 landlord rented the nuisance and took rent for it. The tenants 
 used it and paid rent, and hence they must all be considered as 
 continuing and responsible for the nuisance.'" 
 
 A dock is regarded as a species of public highway, and for that 
 reason the same rules apply. ^ 
 
 In Swords v. Edgar, 59 ]^. Y. 28, it was held that the lessors 
 of a pier which was in possession of their lessee, from whom 
 they were receiving rent for it, were liable for an injury received 
 by a longshoreman engaged in discharging a cargo thereon, the 
 cause of the injury being a dangerous defect which existed at the 
 date of the demise. The pier, though private property, was kept 
 for use by all the vessels which might come to it for the purpose 
 -of loading and unloading, and the court held that the longshore- 
 man, being in the employ of such vessel, was to be regarded as 
 there by invitation, and therefore was entitled to the protection 
 which would result from having the pier in an ordinary state of 
 security and strength. The court also held that, though the lease 
 contained a covenant binding the lessee to keep the pier in good 
 order and repair, the lessors were not exonerated therefrom, dis- 
 senting from the result reached in Pretty v. Bickmore, L. R. 8 C. 
 P. 401." 
 
 Albert v. State, ^'6 Md. 325, 6 Cent. Rep. M7, was an action 
 brought by or for a minor for damages sustained by him by the 
 death of his parents, who were drowned by reason of the defec- 
 tiveness of a wharf in the occupation of the defendant's tenant. 
 The instruction given on trial to the jury was that "if the jnry 
 found that the defendant was the owner of the wharf and that he 
 
 »Citing Bex v. Pedly, 1 Ad. & El. 823 ; Anderson v. Bkkie, 26 How. Pr. 
 105 ; People v. Erwin, 4 Denio, 129. See also Rex v, Moore, 3 Barn. & 
 Ad. 184. 
 
 ^Edwards v. Mw York & H. B. Co. 98 N. Y. 245. 
 
 ^See also Rankin v. Ingwersen, 49 N. J, L. 481, 8 Cent. Eep. 371; Nel- 
 son V. Liverpool Brewery Co. L. R. 2 C. P. Div. 311; Waggoner v . Jer- 
 maine, 3 Denio, 306; McCallumY. Hutchinson, 7 U. C. C. P. 508; Durant 
 V. Palmer, 29 N. J. L. 544.
 
 Chap, v.] OWXEK OR TENANT CREATING A NUISANCE. 49 
 
 rented it out to the tenant, and that at tlie time of tlie rentuig the 
 wharf was unsafe, and the defendant knew, or by tlie exercise of 
 reasonable diligence could have known, of its unsafe condition, and 
 the accident happened in consequence of such condition, then the 
 plaintiff was entitled to recover." On appeal, this instruction was 
 approved by the court as correct. 
 
 Many other authorities sustain the general propositions stated.' 
 A distinction has been taken between the liability of the land- 
 lord and tliat of the tenant ; and the former has been restricted to 
 that w^hich is a nuisance in its very essence and nature at the time 
 of letting, and not something merely capable of being rendered a 
 nuisance by the tenant.'' But there are cases which affirm the 
 lessor's lia])ility for a nuisance which was a necessary, contemjilated 
 or probable result of the use of the thing leased for the purpose 
 for which it was leased.^ In some cases a knowledge, on the part 
 of the lessor, of the existence of the nuisance at the time of the 
 ■demise is held to be an essential element of his liability.'' 
 
 A different view was expressed by the Court of Queen's Bench 
 in Gandij v. Juhber, 5 Best & S. 87 ; but as the plaintiff in that 
 case, upon an error in the Exchequer Chamber, accepted a s^ei^Jj^ro- 
 cessus on the recommendation of the court, the weight of that 
 case may be considered lessened. If such knowledge is an essen- 
 tial element of the landlord's liability, the cases of Pretty v. 
 Bickmore, L. R. 8 C. P. 401, and Gwinnell v. Earner^ L. R. 10 C. 
 
 ^Nehon v. Liverpool Brexoery Co. L R. 2 C. P. Div. 311; Knauns v. 
 Bi'ua, 107 Pa. 85; Fowy. Roberts, 108 Pa. 489; Cunningham y. Cambridge 
 Sav. Bank, 138 Mass. 480; Dalay v. Savage, 145 Mass. 38, 4 New Eng. 
 Rep. 8G3; Nugent v. Bodon, C. c6 M. R. 'Co. 80 Me. 62, 77, 5 New Eng. 
 Rep. 865; Albert v. State, 66 Md. 335, 6 Cent. Rep. 447; Sicords v. Edqar, 
 59 N. Y. 28: Edwards v. New York & H. R. Co. 98 N. Y. 247; Walsh v. 
 Mead, 8 Hun, 387. 
 
 ^Gandy v. Jubber, 5 Best & S. 87; Loioell v. Spaulding, 4 Gush. 277; Stetcart 
 V. Pitnam, 137 Mass. 403. 
 
 ^missci/ V. Ryan, 64 Md. 426; Riley v. Simpson, 83 Cal. 217, 7 L. R. A. 
 622; Kalis v. Shattuck, 69 Cal. 593; .lessen v. Sweir/ert, 66 Cal. 182; Rr^for 
 V. Bnckhart, 3 Hill, 193; Mullen v. St. John, 57 N. Y. 567; Wood, Xiiis. 
 Sg 295, 676; Fish v. Dodge, 4 Denio, 311; Rex v. Pedhj, 1 Ad. & El. 822; 
 House V. Metcalf, 27 Conn. 631; Wood, Land, and T. fcj 639, and cases in 
 notes. The following cases illustrate the principle: Nelson v. Liverpool 
 Breicery Co. L. R. 2 C. P. Div. 311 ; S/aple v. Spring, 10 JVIass. 72; Sallon- 
 stall Y. Banker, 8 Gray, 195; Stcords v. Edgar, 59 N. Y. 28; Waggoner v. 
 Jermaine, 3 Denio, 806; McCallum v. Hutchinson, 7 U. C. C. P. 508; 
 Durant v. Palmer, 29 N, J. L. 544. 
 
 *Qwinnell v. Earner, L. R. 10 C. P. 658; State v. Williams, 30 N. J. L. 102. 
 4
 
 50 IMPOSED DUTIES, PEESONAL. [Part I. 
 
 P. 658, may be reconciled with the other cases. In the latter case 
 it appears that the lessor demised in ignorance of the defect. In 
 the former case the same ignorance may be inferred. 
 
 In Rankin v. Ingwersen, 42 N. J. L. 481, 8 Cent. Rep. 371, it 
 was said by Magie, J.: " Nor do I perceive how the liability of 
 the landlord in such cases will be diminished by the fact that he 
 renewed the tenant's lease without retaking actual possession. 
 Such a conclusion would be opposed to the principles creating and 
 governing his liability. If a nuisance is created during a term 
 already existing, no liability falls on the landlord pending that 
 term, for the reason that he has no legal means of abating the 
 nuisance. He cannot enter upon his tenant's possession for that 
 purpose, and would be a trespasser if he did so. But when the 
 term expires, his right of entry and power to abate at once arise, 
 and for that reason a liability commences. If he declines to re- 
 enter and abate the nuisance, and relets the premises, the liability 
 which arose at the termination of the term will be neither dis- 
 charged nor evaded. The test of his liability in such case is his- 
 power to have remedied the wrong. If he has, but fails to exer- 
 cise, such power, his liability remains. The cases seem to be 
 uniform in this view.'" 
 
 In Gandy v. Jubher, 5 Best & S. 87, the landlord was held 
 liable in case of a tenancy from year to year, which he could have 
 terminated by notice, which he failed to give. 
 
 The liability of lessors to respond in damages is because the 
 premises from which the injuries were received, let by them for 
 a rent or profit, were let to be used for purposes for which they 
 were not fit or safe to be used, and because the lessors knew when 
 they let them the purpose for which they were to be used, and also 
 knew or ought to have known that they were not fit or safe to be 
 so used, the liability being of special application where the prem- 
 ises were let to be used for public resort or entertainment, or for 
 other public or quasi public purj)Oses ; and indeed a disposition 
 appears to exist on the part of some judges to limit the lessor's 
 liability, except for nuisances and cases in which the injuries com- 
 plained of are attributable to defective or dangerous premises let 
 
 'See Whnlen v. Gloucester, 4 Hun, 24; Rex v. Pedly, 1 Ad. & El. 832; Rich 
 y. Basterfield, 4C. B. 782; Clancy v. Byrne, 56 N. Y. 129.
 
 Chap, y.] OWNER OR TENANT CREATING A NUISANCE, 51 
 
 to be so used/ lie M'ill be liable if he demises premises to be 
 used as a nuisance, or for a business, or in a way, so that they will 
 necessarily become a nuisance,^ The owners of a leased building 
 who consent to or permit the act which causes a building to become 
 a nuisance, as where they agree to the erection of an awning by 
 the tenants, and contribute lumber for its construction, are liable 
 to a person injured by the falling of the awning and a portion of 
 the wall to which it was attached, because the wall was not of suffi- 
 cient strength to support the burden.^ 
 
 In Godley v. IIa(/eH;/, 20 Pa. 887, approved in Carson v. God- 
 ley, 26 Pa. Ill, it was held that where the owner of real estate 
 erected thereon a row of buildings with the intention of rentino; 
 them to the government as bonded warehouses and with the knowl- 
 edge that they would be obliged as such to stand very great 
 weight, he was liable in damages for an injury to a person em- 
 ployed in one of the storehouses occasioned by its fall after having 
 been so rented, though the immediate cause of the accident was 
 the storage of heavy merchandise in the upper story, it ap]:)earing 
 that the building had been constructed on a defective plan and of 
 insufficient strength.* 
 
 But it was held in Texas & P. R. Co. v. Mangum, 68 Tex, 
 342, that a railway company is not liable for injuries resulting 
 from a defective construction of a hotel on its land, where it was 
 built, owned and kept by its lessee. 
 
 In Oicings v. Jones, 9 Md. 108, the plaintiff sued for damages 
 for injuries received by falling into a vault appertaining to the 
 
 ^Godley v. Raqerty, 20 Pa. 387, affirmed ia Carson v. Godley, 26 Pa. Ill ; 
 
 SiDords V. Edgm\ 59 N. Y. 28 ; Albert v. State, 66 Md. 325, 6 Cent. Rep. 
 
 447. And within the same class of cases is that of Joyce v. Martin, 15 
 
 R I. 558, 4 New Eng. Rep. 796. 
 ^Emsey v. Byan, 64 Md. 426; Riley v. Simpson, 83 Cal. 217, 7 L. R. A. 622; 
 
 Kalis V. Shattuck, 69 Cal. 593; Jessen v. Sioeirjert, 66 Cal. 182; Rector v. 
 
 Buckhart, 3 Hill, 193; Mullen v. St. John, 57 N. Y. 567; Wood, Nuis. 
 
 §§ 295, 676; Fish v. Dodge, 4 Denio, 311; Rex v. Pedly, 1 Ad. & El. 822; 
 
 House V. Meicalf, 27«Conn. 631; Wood, Land, and T. § 639, and cases in 
 
 notes. The following cases illustrate the principle: Nelson y. Liverpool 
 
 Brewery Co. L. R. 2 C. P. Div. 311; Staple v. Spring, 10 Mass. 72; Saltan- 
 
 stall V. Banker, 8 Gray, 195; Swords v. Edgar, 59 N. Y. 28; Waggoner ^. 
 
 Jermaine, 3 Denio, 306; McCallum v, Hutchinson, 7 U. C. C. P. 508; 
 
 JDurant v. Palmer, 29 N. J. L. 544. 
 ^Riley v. Simpson, 83 Cal. 217, 7 L. R. A. 622; Kalisv. Shattuck, 69 Cal. 593. 
 *See also, as illustrating the principle, Saltonstall v. Banker, 8 Gray, 195; 
 
 Waggoner v. Jermaine, 3 Denio, 306; McCallum v. llulchinson, 7 U. C. 
 
 C. P. 508; Durant v. Palmer, 29 N. J. L. 544.
 
 52 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 property of the defendant and bnilt under the sidewalk of a pub- 
 lic street. It was shown in defense that the property had been 
 leased by the defendant for a term of seven years, the lessee agree- 
 ino- to pay an annual rent therefor, but not in any manner stipulat- 
 ing to keep the demised premises in rej)air, nor to have the sink 
 kept clean, and that the lessee was in possession at the time of tlie 
 accident. But the court held that the defendant was not relieved 
 from liability if the vault was so constructed as to be unsafe for 
 passers-by when the premises were let, or as to be liable to become 
 unsafe in the necessary opening for the purpose of cleaning it. 
 The court, in giving its opinion, laid down the following proposi- 
 tions, relying on the authority of Rich v^ Basterfield, 4 C. B. 784, 
 and the cases cited there, to-wit: (1) when property is demised, 
 and at the time of the demise is not a nuisance, but becomes so 
 only ])y act of the tenant while in his possession, and an injury 
 happens during such possession, the owner is not liable;' (2) but 
 where the owner leases premises which are a nuisance, or must 
 in the nature of things become so by their use, and receives rent, 
 then, whether in or out of possession, he is liable for injuries re- 
 sulting from such nuisance. I^uraerous cases support this view." 
 
 The duty of keej)ing a sidewalk safe can only be transferred to 
 a tenant by a complete transfer of the possession of the premises, 
 which leaves no power of control in the owner.' 
 
 The landlord of an apartment house, retaining the control of 
 the halls and coal-vaults, is liable for an injury to a passer-by from 
 
 *To this effect see Joyce v. Martin, 15 R. I. 558, 4 New Eng. Rep. 797; 
 Banldn v. Ingicersen, 49 N. J. L. 481, 8 Cent. Rep. 371; Ditchett v. Spuyteyi 
 Duyvil & P. M. R. Co. 67 N. Y. 425; Shindelbeck v. 3{oon, 32 Ohio St. 264; 
 Wolf V. Kilpatrick, 101 N. Y. 146, 2 Cent. Rep. 82;. Bt/an v. Wilson, 87 N. 
 Y. 471; Harris v. Co?ien, 50 Mich. 324; St. Louis v. Kaime, 2 Mo. App. 66. 
 
 ^Boseicell \. Prior, 2 Salk. 459, 12 Mod. 635-639; Rex v. Pedly, 1 Ad. & El. 
 822; Rex v. Moore, 3 Barn. & Ad. 184; Todd v. Flight, 9 C. B. N. S. 377; 
 Nelson V. Liverpool Brewery Go. L. R, 2 C. P. Div. 311; Pretty v. Bick- 
 more, L. R. 8 C. P. 401. In the hist named case the lessor was held to 
 be exenipt from liability because lie let the premises by lease in which 
 the tenant covenanted to keep them in repair. See also the following 
 American cases: Staple v. Spring, 10 Maes. 72; Fish v. Bodge, 4 Deuio, 
 311; Bavenport v. Ruckman, 37 N. Y. 568; Anderson v. Bickie, 26 How. 
 Pr. 105; House v. Metcalf, 27 Conn. 631, and cases cited to this point, 
 supra. 
 
 ^Jennings v. Van Schaick, 108 N. Y. 530, 11 Cent. Rep. 317. See McOuire 
 V. Spence, 91 N. Y. 305; Bvinev. Wood, 51 JST. Y. 224; Swords v. Edgar, 59 
 N. Y. 34; Clifford v. Bam, 81 N. Y. 56; Cougreve v. Smith, 18 N. Y. 79; 
 Anderson v. Bickie, 26 How. Pr. 105; Rex v. Pedly, 1 Ad. & El. 822 ; 
 People V. Erwin, 4 Denio, 129.
 
 Chap, v.] PUKCHASER CONTINUING NUISANCE. 53 
 
 falling into an unguarded coal-hole in the sidewalk.' Where the 
 opening in the sidewalk was made and left uncovered by the 
 landlord, he was held liable.' 
 
 In Edwards v. New York & H. R. Co., 98 N. Y. 245, the 
 plaintiff sued for injury by the falling of a gallery in a building, 
 and it was held that the lessors were not liable, there being no evi- 
 dence that they knew or had reason to know that the gallery 
 would be used in such a way as to endanger its security. The 
 court, however, in delivering the judgment, said that if one builds 
 a house for public amusements or entertainments and lets it for 
 those purposes, knowing that it is so imperfectly or carelessly built 
 that it is liable to go to pieces in the ordinary use for which it is 
 designed, he is liable to the persons injured through his careless- 
 ness. In that case there was a vigorous dissenting opinion from 
 the result reached, arguing that the lessors ought to be held to re- 
 sponsibility in damages, united in by Ruger, Ch. J., and Danforth 
 and Finch, JJ^ 
 
 1. Owner Creating or Purchaser or Devisee Con- 
 tinuing JSTuisance. 
 
 But the owner is responsible if he creates a nuisance and main- 
 tains it. "Whether a building has been made unsafe by the agency 
 of time or the acts of trespassers is immaterial as affecting the own- 
 er's liability, where it was within his power to prevent such con- 
 dition, as, in either event, it is the owner's duty to keep his build- 
 ing in a safe condition." 
 
 In Silvers v. Nerdlinger, 30 Ind. 53, it was held that the owner 
 of a lot in a citj^, having by permission of the city authorities 
 caused an excavation to be made in a sidewalk along which people 
 are accustomed to pass, for the purpose of constructing an area by 
 
 ^Jennings v. Van Sehair.k, 108 N. Y. 530, 11 Cent. Rep. 317. So a purchaser 
 would be liable if be suffered the tenant, not obliged to repair, to retain 
 possession of dangerous premises to which he bad a right of entry. Da- 
 lay V. Savage, 145 Mass. 38, 4 New Eng. Rep. 8G3. 
 
 ^Lariie v. Farren Hotel Co. 116 Mass. 67. 
 
 3See also Camp v. Wood, 76 N. Y 92. 
 
 *Tu-jker v. lUinois C. R. Co. (La. Jan. 20, 1890) 7 So. Rep. 124: Todd v. 
 FUght, 9 C. B. N. S. 377; Jennings v. Van Schaick, lOS N. Y. 530; Dalay 
 V. Savage, 145 Mass. 38.
 
 54 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 the side of a building to be erected on such lot, it is his duty to 
 see that proper protection against danger to persons passing along 
 the sidewalk is provided. If, in consequence of such excavation 
 being insufficiently guarded, a passenger on the sidewalk falls in 
 and is injured, without his own fault, the lot at the time, for the 
 purpose of constructing an area and erecting the building under a 
 contract, being in the exclusive possession of a third person (the 
 contractor), who has complied with the stipulations of his contract, 
 the owner is liable for the injuries so received. 
 
 When one erects a nuisance he is answerable for the continu- 
 ance of it as well as for the original wrong; and this is so where 
 the erection was made upon the land of another, and he has no 
 right to enter for the purpose of removing it.' The continuance 
 is a new nuisance,'^ and the party cannot excuse himself by sliow- 
 ing it is not in his power to redress the wrong. He must find 
 some way of putting an end to the injury.' 
 
 In Beck v. Garter, 68 K. T. 2S3, and Clifford v. Dam, 81 N. 
 Y. 52, the actions were in each case against the defendant who 
 had himself created the nuisance. 
 
 A fterson who, with knowledge of the existence of a nuisance 
 upon real estate, purchases the reversionary interest and receives 
 the rents from the tenant, thereby assumes the responsibility for 
 the nuisance, and is liable for damages caused thereby subsequent 
 to his purchase.* So the owner will be liable if the nuisance was 
 erected on the land by a prior owner, or by a stranger, and he 
 knowingly maintains it; but the person who acquires land on 
 which a nuisance exists is not rendered liable by a mere omission 
 to abate or remove it, and there must be something amounting to 
 actual use of the land or a request made to remove the nuisance.* 
 
 A grantee or devisee of premises upon which there is a nuisance 
 at the time the title passes is not responsible for the nuisance un- 
 til he has had notice thereof, and in some cases until he has been 
 requested to abate the same. In the case of a continuous nuisance, 
 
 ' Thompson v. Oibson, 7 Mees. & W. 456. 
 
 ^See Sewall, J., in Staple v. Spring, 10 Mass. 74. 
 
 ^BttsJi V. Sieinman, 1 Bos. & P. 404. This case has not been questioned on 
 
 this point. 
 ^Pierce v. German Sav. & Loan Society, 72 Cal. 180. 
 ^Wenzlick v. McCotter. 87 N. Y. 122.
 
 Chap, v.] PURCHASER CONTINUING NUISANCE. 55 
 
 the person who erects it is liable ; the person who succeeds to it 
 is not liable unless he has notice and continues it, and as soon as 
 he has notice of it, he must abate it.' The authorities to this effect 
 are so numerous and uniform that the rule which they estal)lisli 
 ought no longer to be open to question. One of the earliest cases, if 
 not the earliest, in which this rule was announced, is Penrwhlock^ s 
 Case, 5 Coke, lOOJ, where it was resolved that an action lies 
 against one who erects "a nuisance without any request made to 
 abate it, but not against the feoffee, unless he does not remove tlie 
 nuisance after request ; and in Pierson v. Glean, 14 N. J. L. 37, 
 Chief Justice Hornblower said : " The law as settled in Penrud- 
 docTvS Case has never, I believe, been seriously questioned since." 
 
 In McDonough v. Gilman, 3 Allen, 264, it was held that a 
 tenant for years is not liable for keeping a nuisance as it used to 
 be before the commencement of his tenancy, if he had not been 
 requested to remove it, or done any new act which of itself was 
 a nuisance ; and the same rule has repeatedly been laid down. 
 
 In Plumer v. Harper, 3 N. H. 88, Richardson, Ch. J., said : 
 "When he who erects the nuisance conveys the land he does not 
 transfer the liability to his grantee. For it is agreed in all the 
 books that the grantee is not liable until upon request he refuses 
 to remove the nuisance." 
 
 In Woodman v. Tufts, 9 N. H. 88, it was held that where a 
 dam was erected and land flowed by the grantor of an individual, 
 the grantee would not be liable for damages in continuing the dam 
 and flowing the land as before, except on notice of damage and 
 request to remove the nuisance or withdraw the water. 
 
 In Eastman v. Amoslieag Mfg. Co., 44 ]N". H. 144, it was held 
 that no notice or request to abate the nuisance is necessarj' before 
 bringing suit against the original wrong-doer in such cases for the 
 damages done ; but that the grantee of the nuisance is not liable 
 to the party injured until, upon request made, he refuses to re- 
 move the nuisance. Sargent, J., writing the opinion, said : "The 
 doctrine of the cases in this State and elsewhere is that he who 
 erects a nuisance does not, by conveying the land to another, 
 
 'Willes, J., in Fletcher v. Rylands, L. R. 1 Exch. 265. Unless the nuisance 
 be so evident and dangerous that linowledge will be chargeable, if he 
 personally or by agent take possession. Ahem v. Steele, 115 N. Y. 203, 
 5 L. R. A. 449.
 
 56 IMPOSED DUTIES, PEKSONAL. [Part I. 
 
 transfer the liability for the erection to the grantee ; and the 
 grantee is not liable until upon request he refuses to remove the 
 nuisance, for the reason that he cannot know until such request 
 but the datn was rightfully erected ; and there can be no injury in 
 holding to this doctrine, as the original wrong-doer continues lia- 
 ble, notwithstanding his alienation." To the same effect is Carle- 
 ton v. Eedington, 21 K H. 291. 
 
 In Johnson v. Lewis, 13 Conn. 303, where it appeared in an 
 action for the obstruction of a watercourse by raising a dam that 
 the dam creating the obstruction was erected by the defendant's 
 grantor, it was held that the plaintiff could not recover without 
 proving a special request to the defendant to remove the obstruc- 
 tion. Sherman, t/!, writing the opinion, said : " The law is well 
 settled that a purchaser of the property on which a nuisance is 
 erected is not liable for its continuance, unless he has been re- 
 quested to remove it. This rule is very reasonable. The pur- 
 chaser of property might be subject to great injustice if he were 
 made responsible for consequences of which he was ignorant, and 
 for damages which he never intended to occasion. They are of- 
 ten such as cannot be easily known, except to the party injured.'** 
 In Miller v. Church, 2 Thomp. & C. 259, the lessees of a mill- 
 pond were held not liable for the overflow without proof of 
 knowledge of tenants of existing conditions.* Where a lessee or 
 grantee continues a nuisance of a nature not especially unlawful,, 
 he is liable to an action for it only after notice to reform or abate 
 it.= 
 
 Persons who become full owners of an estate on the death of a 
 life tenant, subject to a valid outstanding lease, are not responsible 
 for a nuisance committed before the estate descended to them, 
 and of which they had no notice, and which it was the tenant's 
 duty to remove. The receipt of rent will not render the land- 
 lord liable if otherwise not, nor will the right to enter and make 
 repairs.* 
 
 ^Noyes v. StiUman, 24 Conn. 15; PllUbury v. Moore, 44 Me. 154; Beaver» 
 V. Trimmer, 25 N. J. L. 97 ; Hubbard v. Russell, 24 Barb. 404. 
 
 2See Chltty, PI. 71; Cooley, Torts, 611; 1 Hilliard, Torts (3d ed.) 574. 
 
 ^Moak's Underhill, Torts, 253-255; Addison, Torts (Wood's Am. ed.) 
 §§ 240, 280, 283. 
 
 ^Ahern v. Steele, 115 N. Y. 203, 5 L. R. A. 449. See also Fish v. Dodge, 
 4 Denio, 311; Swords v. Edgar, 59 N. Y. 28.
 
 Chap, v.] . PUKCHASER CONTINUING NUISANCE. 57 
 
 In Aherfi v. Steele, 115 N. T. 203, 5 L. E. A. 419, wlicro tlie 
 defendants became owners of the defective pier upon the death of 
 their mother, it was admitted that, if the defendants had p;one into 
 possession of tlie pier personally, or by their agents, its character 
 was such that they must have known that it was dangerous and a 
 nuisance, and no direct proof of notice would have been requii-ed 
 to charge them ; it could have been inferred. But, it was said, 
 when there is no proof that the owners of premises, which came to 
 them with a nuisance existing thereon without their fault, were 
 ever in possession of the premises, or ever even saw them, there is 
 no possible ground for charging them with notice or imputing to 
 them legal fault. The pier came to them, not only wuth this nui- 
 sance existing thereon, but subject to an outstanding lease for 
 some years, which they had no power to terminate. The lessee 
 who occupied and used the pier was under obligation to the pub- 
 lic to see that it did not become a nuisance, and it was his duty to 
 respond for any damage sustained by any person from the nui- 
 sance. Tlie owners of the reversion had the right, in the absence 
 of notice, to suppose that he would discharge such duty and pro- 
 tect the public, and they were under no obligations to see by 
 w^atchful vigilance that he performed such duty. And so it has 
 been held in all the analogous cases, that the landlord, in the ab- 
 sence of notice, is liable only in case he demised the premises with 
 the nuisance thereon. The fact that the defendants, under the- 
 lease, had the right to go upon the pier and make repairs, if they 
 should see fit to do so, is held to be wholly immaterial. Even 
 when an owner demises premises and covenants to repair, the cov- 
 enant cannot inure directly to the benefit of a third person not a 
 ]3arty thereto. But in such case the third person injured, because, 
 for want of repairs, the demised premises have become a nuisance, 
 has a cause of action primarilj'- against the tenant. But because 
 the tenant in case of a recovery against him could sue his landlord 
 for indemnity upon the covenant, to prevent circuity of action, 
 the person injured may bring his action against the landlord, not 
 because the landlord owed him any duty to repair, but because he 
 owed that duty to his tenant. It would have been wholly imma- 
 terial if the owners of the pier had let it without reserving any 
 right to go upon it for repairs, and even if they could not have-
 
 •58 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 gone upon it for repairs without being trespassers.' There 
 is no case, it is said in the opinion, which holds that wliether the 
 landlord can or cannot go upon the demised premises to make re- 
 pairs IS a material circumstance affecting his liability for a nuisance 
 existing thereon. It was held in Clancy v. Bijrne^ 56 N. Y. 129, 
 that a lessee who has covenanted with his landlord to repair is not 
 responsible to a stranger for a nuisance upon the demised premises 
 while in the possession of a sub-tenant to whom he had let them. 
 As he had made no covenant to repair with his tenant, and was 
 not bound to indemnify him, the person injured could not main- 
 tain an action against him, although he had covenanted with his 
 landlord to repair. Consequently, if the owners of the pier in Ahem 
 V. Steele^ supra, had even been under a covenant with their prede- 
 cessors in the title, or with any other person but the lessee, to keep 
 this pier in repair, their breach of the covenant and failure to dis- 
 charge their duty to their covenantee would not have made them lia- 
 ble for the death of the child ; and with much less reason can such a 
 liability spring from a mere stipulation in a lease made by one for 
 whose acts they are in no way responsible, which merely put it in 
 their power to make the repairs. In cases where it is said that a 
 landlord bound to make repairs upon demised premises is responsi- 
 ve for a nuisance thereon, the obligation to make the repairs was 
 one existing between him and the tenant.* The whole ar- 
 gument on this point is summed up in the statement that, where 
 there is no breach by the defendants of any duty due from them 
 to the tenant, the stipulations in the lease do not concern a stranger 
 thereto. There is no authority from the reported decisions or from 
 the text-books which imposes upon the landlord, not otherwise lia- 
 ble for a nuisance upon demised premises, the duty of active vigi- 
 lance to ascertain their condition. A landlord has never been held 
 responsible for a nuisance because he did not himself obtain notice 
 of its existence. But it has always been held to be the duty. of 
 any person seeking to enforce the landlord's responsibility for a 
 nuisance to show that he had such notice. 
 
 In Woram v. Noble, 41 Hun, 398, the action was brought to 
 recover damages for an injury sustained ill consequence of a de- 
 
 'FisA V. Bodge, 4 Deaio, 311 ; Swordi v. Edgar, 59 N. Y. 28. 
 ^Rimcll V. Sheiiton, 2 Gale & D. 573.
 
 Chap, v.] PURCHASER CONTINUING NUISANCE. 59 
 
 fective coal-hole ; and it appeared that the defendant became the 
 owner of the premises in September, 1883, subject to a lease to a 
 tenant, expiring May 1, 1884:, which required the tenant to make 
 all repairs; that the coal-hole was then in tlie sidewalk, but it liad 
 not been constructed by the defendant, nor did he have any notice 
 or knowledge of its defective condition, although the tenant had 
 noticed the depression in the stone about a year previous to the 
 accident ; and it was held that the defendant could not, in the 
 absence of any evidence to show that he was responsible for 
 the condition of the coal-hole or had knowledge of its defective 
 condition, be held liable for the injury sustained by the plaintiff. 
 The judge writing the opinion said : " We find no special decision 
 and no principle enunciated in any elementary work that will 
 furnish a basis for a recovery against the defendant in this action. 
 He did not construct the work that became a nuisance, and he did 
 not continue it in any legal sense." The defendant became the 
 owner subject to a lease, and the nuisance existed at the time he 
 became such owner, and it was held that he could not be made 
 liable for the accident without proof of notice to him of the exist- 
 ence of the nuisance. 
 
 In Conhocton Stone Road v. Buffalo, N. Y. & E. li. Co., 51 
 N. Y. 573, the action was brought to recover damages for injuries 
 to the plaintiff's roadbed, caused by the same being washed and 
 flooded in the years 1864 and 1865, by reason of an embankment 
 and bridge built over a creek by a prior owner of defendant's 
 road in 1851 or 1852. The defendant became the owner of tlie 
 embankment, bridge, and of its road by purchase at a foreclosure 
 sale in 1857, and in February, 1863, it leased its road, including 
 the embankinent and bridge, to the Erie Railway Company, Avhicli 
 took possession of the road and had possession under its lease at 
 the time of the damage complained of by the plaintiff; and the 
 general rule was affirmed that in order to maintain an action for 
 damages resulting from a nuisance upon defendant's land, wliere 
 such nuisance was erected by a prior owner before conveyance to 
 defendant, it is necessary to show that before the commencement 
 of the action he had notice or knowledge of the existence of the 
 nuisance, but that it is not necessary to prove a request to abate 
 it. Judge Lott, writing the opinion, said: "AVliei-e persons sue-
 
 60 IMPOSED DUTIES, PERSONAL. [Part L 
 
 ceedin^ to the ownership of land on which a nuisance had previ- 
 ously been erected have been held liable for damages resulting- 
 from its subsequent continuance, it appeared either that it was 
 after notice of its existence or that the question of such notice- 
 had not been raised at the trial," There the defendant became 
 the owner of the premises with the nuisance existing thereon, 
 and actually leased them in the same condition to another com- 
 pany, which was in possession at the time of the damage com- 
 plained of ; and yet, in the absence of proof that the defendant 
 had notice of the nuisance, it was held not to be liable for damages 
 caused thereby. 
 
 In Brown v. Cayuga c& S. R. Co., 12 N. Y. 486, the predecessor, 
 of the defendant had constructed its road across a stream of water 
 in such a manner as to cause the stream to overflow and damage 
 the lands of the plaintiff. Upon the trial the defendant insisted 
 that inasmuch as it had no agency in building the obstruction in 
 the stream or in making the excavation through the bank, but 
 that had been done by the old company, it was not liable, and 
 upon this ground it moved for a nonsuit, which was denied. Upon 
 the appeal it was held that the defendant could not have the ben- 
 efit of the point that there had been no request to abate the nui- 
 sance because it was in no way taken at the trial ; and hence the 
 case was treated as if the request had actually been made and 
 proven. The point decided, as stated in the head note, is that "the 
 successor to the title and possession of property who omits to abate 
 a nuisance erected thereon by another, after notice to so do, is 
 liable for the damage caused by its continuance." Judge Denio, 
 writing one of the opinions, held that an action on the case will 
 lie against one who continues a nuisance by which damage is oc- 
 casioned to the plaintiff without notice first given to remove it. 
 He cited no authority sustaining his views, but cited authorities 
 in conflict with them, holding that they were not binding upon 
 the court. But it is expressly stated that the court did not pass 
 upon the question whether the defendant was liable without notice 
 to remove the obstruction and restore the bank of the stream ; and 
 the views of Judge Denio, besides having the support of no au- 
 thority in this country or England, were distinctly repudiated in 
 Conlwcton Stone Road v. Buffalo, N. Y. c& K R. Co., 51 N. Y. 
 573.
 
 Cliap. Y.] NUISANCE DUKING TEKM OF LEASE. 01 
 
 2. Kuiscmce Occurring During Term of Lease- 
 Covenant to Repair. 
 
 An owner who lias demised premises for a term, during which 
 the_y become ruinous, and thus a nuisance, is not responsible for 
 the nuisance unless he has covenanted to repair.' When the de- 
 fect occurs after lease, with no contract bj landlord to repair and 
 no fault of original construction, he is not liable." 
 
 In Knauss v. Brua, 107 Pa. 85, repeated in Foio v. I2oberts, 
 108 Pa. 489, it is said : " We do not doubt but that, in the 
 absence of an agreement to repair, the landlord is not liable to a 
 third party for a nuisance resulting from dilapidation in the lease- 
 hold premises whilst in the possession of a tenant." 
 
 A landlord is not liable to a servant of his tenant for injuries 
 occasioned by a dangerous condition of the premises existing at 
 the time of the lease, although he subsequently promised, without 
 any new consideration, to repair the premises, if there was no 
 covenant to repair in the lease.* Nor is he liable to his tenant, 
 without express contract, for damages arising from defects in the 
 building, in the absence of fraud." 
 
 In Jaffe v. Harteau, 56 N. Y. 398, it was held that a lessor of 
 buildings, in the absence of fraud or any agreement to that effect, 
 is not liable to the lessee or others lawfully upon the premises for 
 their condition, or that they are tenantable and may be safely and 
 conveniently used for the purposes for which they are apparently 
 intended. 
 
 The landlord is not answerable for any wrongful use or negli- 
 gent management of the premises by the lessee. Applied, to the 
 
 ^Clancy v. Byrne, 56 N. Y. 129; Swords v. Edfjar, 59 N. Y. 28; Wolf v. Kil- 
 patrick, lUl N. Y. 146, 3 Cent. Rep. 81; Ahem v. Steele, 115 N. Y. 203, 
 5 L. R. A. 440. Applied to defective sidewalk, Bnbboge v. Poiccrs (Sup 
 Ct. Oct. 19, 18S9), 26 N. Y, S. R. 799; Rankin v. Ingwerson, 49 N. J. L. 
 481, 8 Cent. Rep. 371. 
 
 ^Johnson V. McMillan, 69 Mich. 36, 13 West. Rep. 740; Wolf v. Kilpnirick 
 101 N. Y. 146, 2 Cent. Rep. 81; Woram v. Noble, 41 Hun, 398; Rich v. 
 Bnsterfield, 4 C. B. 784, limiting the ruling in Rex v. Pedly, 1 Ad. & El. 
 822. 
 
 *Perez v. Rabaud, 76 Tex. 191, 7 L. R. A. 620. 
 
 ^iMcas V. Coulter, 104 Ind. 81; Taylor, Land and Ten. § 381; Wood, Land, 
 and Ten. §317; Gleves v. WiUoucjhby, 7 Hill, 83; O'Brien v. Capwell, 59 
 Barb. 497; Hart v. Windsor, 12 Mees. & W. 68; Keates v. Earl of Cadogan, 
 10 C. B. 591; Robbins v. Jones, 15 C. B. N. S. 231; Leavilt\. Fletcher, 
 10 Allen, 119; Godley v. Ilagerty, 20 Pa. 387.
 
 62 IMPOSED DUTIES, PERSONAL. [Part L 
 
 case of a leased ferry ;' to the case of a livery stable f to the 
 proprietor of a tenement house f placing heavy stone on bal- 
 cony ;* staging suspended from cornice f roof used for laundry 
 purposes." The owner of a building in the possession and control 
 of his tenants is not liable for the consequences, to a third person, 
 of a nuisance in connection with the building, unless the nuisance 
 occasioning the injury existed at the time the premises were 
 demised.'' A landlord is not liable for the maintenance of a 
 nuisance by his tenant." To render the landlord liable for injury 
 it must be sliown that it necessarily arises from the ordinary use 
 of the premises, and that it could not be avoided by ordinary care 
 on the part of the tenant.* 
 
 It has been held in England and in Massachusetts that an owner 
 may demise premises so defective and out of repair as to be a 
 nuisance, and, if he binds his tenant to make the repairs, he is not 
 responsible for the nuisance during the term.'" 
 
 A lease of a store and basement includes the excavation under 
 the sidewalk and its covering, and the tenant's covenant to keep 
 in repair applies to it. Hence it is ruled in Massachusetts that a 
 landlord is not under obligation to see that excavations in side- 
 walks, made by him and covered when left, are kept covered," 
 although he had a right of entry to repair if he wished ; and that 
 the owner of a building leased to a tenant, who occupied it, is not 
 liable in that State to a third person who was injured in passing along 
 the walk leading from the street to a building for the purpose of 
 transacting business with the tenant, by falling down an embank- 
 ment adjoining the walk, although the estate was in that condi- 
 
 ^Norton v. Wisioall, 2fi Barb. 618. 
 
 ^Morris v. Brower, Anth. N. P. 368. 
 
 ^Weston V, Tail<yrs of Potterrow, 14 F. C. 1233, 
 
 ''■Mullen V. Bainear, 45 N. J. L. 520. 
 
 ^Fanjoy v. Seales, 29 Cal. 243. 
 
 ^Ivay V. Hedges, L. R. 9 Q. B. Div. 80. 
 
 ''Kalis V. Shattuck, 69 Cal. 593. 
 
 8 ^Gilliland v. Chicago & A. E. Co. 19 Mo. App. 411, 2 West. Rep. 438. 
 
 ^^Pretty v. Bickmore, L. R. 8 C. P. 401; Owinnell v. Earner, L. R. 10 C. P, 
 
 658; Leonard v. Storer, 115 Mass. 80. 
 ^^Boston V. Gray, 144 Mass. 53, 8 New Eng. Rep. 698; Loicell v. Spaulding, 4 
 
 Cush. 277; Stewart v. Putnam, 127 Mass. 403; Larue v. Farren Hotel Co. 
 
 116 Mass. 67.
 
 Chap, v.] NUISANCE DUKING TEKM OF LEASE. 63 
 
 tion prior to the letting,* uor for falling down an elevator well, 
 occasioned bj the unlocking of the elevator door by a tenant, who 
 obtained the key without the landlord's knowledge." 
 
 In Dalay v. Savage^ 145 Mass. 38, 4 New Eng. Eep. 803, it is 
 decided that if a landlord lets premises abutting upon a way, 
 which are, from their condition or construction, dangerous to per- 
 sons lawfully using the way, he is liable to such persons for injur- 
 ies suffered thereupon, although the premises are occupied by a 
 tenant, unless the tenant has agreed with his landlord to put the 
 premises in proper repair. That the tenant may also be liable is 
 not a defense to the landlord. This rule was applied in an action 
 for damages for an injury received by falling into a defective 
 coal-hole in the sidewalk in front of the house to which the coal- 
 hole was appurtenant, where the defendant had purchased the 
 premises and had a right to the possession thereof, but had per- 
 mitted the person in possession to continue therein as tenant at 
 will, with the defect existing in the premises, without an agree- 
 ment from such tenant to repair the premises. It is said in that 
 case that Pretty v. Biclcmore, L. R. 8 C. P. 401, was decided on 
 the ground that the tenant had covenanted to keep the premises 
 in repair, and therefore the landlord could not be said to have 
 given authority that the premises should be kept in a dangerous 
 state.* 
 
 But these cases permitting the owner to demise premises in a 
 dangerous condition and protect himself by requiring from the 
 lessee a covenant to repair are not in entire harmony with the 
 decisions in other States, and probably w^ould not now be generally 
 received as authority in this country or in England, although the 
 conclusion that the landlord's liability in such case will be dis- 
 charged by reason of his having required the tenant to stipulate 
 to keep the demised premises in repair seems to have been taken, 
 as above shown, in Pretty v. Bichhiore, L. R. 8 C. P. 401, which 
 case was followed and approved in Gimnnell v. Ecnner^ L. li. 10 
 C. P. 658. But it is impossible to reconcile those cases with the 
 principle established by the leading cases or with reason ; for it is- 
 
 ^Mellen v. Morrill, 126 Mass. 545. 
 
 *Handyside v. Powers, 145 Mass. 133, 5 New Eng. Rep. 179. 
 *See ^.eonard v. Storer, 115 Mass. 86. Owinnell v. Earner, L. R. 10 C. P. 
 658, follows Pretty v. Bickmore.
 
 -64 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 unsound to sa)^ tliat one who is liable for a continuing nnisance 
 may shift his liability to an irresponsible tenant by merely taking 
 a contract to remedy the nuisance by repairs.' 
 
 Rex V. Pedly, 1 Ad. & EI. 822, was much relied upon by the 
 plaintiff in Ahem v. Steele, 115 IT. Y. 203, 5 L. R. A. 449, and 
 was fully reviewed by the court and its value as an authority 
 questioned. There the defendant purchased j)remises which were 
 in the occupancy of tenants under a demise for short periods of 
 time from the prior owner, and a nuisance arose thereon after the 
 purchase and after the defendant began to receive the rents. The 
 •defendant, the periods being short, was treated as having relet the 
 premises to the tenants with the nuisance thereon, and it was held 
 that he thereby became liable for the nuisance ; and upon that 
 ground the decision can stand in harmony with all the cases, it is 
 said. But the court seems to have gone further and affirmed a 
 proposition, not necessary for the decision, that such a reversioner 
 is liable to be indicted for the continuing of the nuisance, if the 
 original reversioner would have been liable, though the purchaser 
 has had no opportunity of putting an end to the tenant's interest ' 
 or abating the nuisance. That proposition is declared unsound, 
 and as to that the case has been overruled and distinctly rej)udi- 
 ated in England. 
 
 In Rich V. Basterfield, 4 C. B. 784, the case of Rex v. Pedly 
 was largely criticized, and Cresswell, J., writing the opinion, said 
 of it that, " if Rex v. Pedly is to be considered as a case in which 
 the defendant was held because he had demised the buildings 
 where the nuisance existed, or because he had relet them after 
 the user of the buildings had created the nuisance, or because he 
 had undertaken the cleansing, and had not performed it, we think 
 the judgment right, and that it does not militate against our j)res- 
 ent decision. But if it is to be taken as a decision that a landlord 
 is responsible for the act of his tenant in creating a nuisance by 
 the manner in which he uses the premises demised, we think it 
 goes beyond the jjrinciples to be found in any previously decided 
 cases, and we cannot assent to it." 
 
 In Todd V. Flight, 9 C. B. N. S. 377, Rex v. Pedly was cited 
 as holding that if the defendant demised the privy either when it 
 
 ^Ranlcin v. Ingicersen, 49 N. J. L. 481, 8 Cent. Rep. 371.
 
 Chap. Y.] NUISANCE DURING TERM OF LEASE. 65 
 
 had become a nuisance, or if he liad the duty of cleansing it after 
 it became a nuisance, he might be indicted for the nuisance. 
 
 In Russell v. Shenton, 2 Gale & D. 573, it was said by Lord 
 Chief Justice Denman, in reference to Rex v. Pedly, that "it was 
 an indictment against the owners of houses and privies which had 
 been built for the very purpose of being so used as to create a nui- 
 sance unless the owner took effectual means to prevent it. These 
 means not having been adopted, the owner who received rents for 
 both was held liable for the public nuisance." 
 
 In the case of Ganchj v. Jubher, 5 Best & S. 78, the owner of 
 premises attached to which was an area let the same to a tenant 
 from year to year, and died, having devised the property, with an 
 iron grating over the area improperly constructed and out of re- 
 pair so as to amount to a nuisance, to the defendant, who, having 
 no notice of the nuisance, suffered the tenant to remain in occu- 
 pation of the premises upon the same terms as before, receiving 
 rent ; and it was held that he was liable for damage caused by the 
 nuisance, on the ground that he had relet the premises with the 
 nuisance thereon. It is clear that the court was of the opinion 
 that the defendant would not have been liable but for the fact 
 that he had let the premises with the nuisance thereon. That 
 case went by appeal to the Exchequer Chamber, and is again re- 
 ported in the same volume, at page 485 ; and it was there strenu- 
 ously contended on behalf of the defendant that he was not liable 
 because he could not be treated as having demised the premises 
 with the nuisance thereon, and because he had no notice of the 
 nuisance. The court took the case under consideration and finally 
 recommended the plaintiff to accept a stet processus — substantially 
 a final stay of proceedings — and the plaintiff accepted it, evidently 
 induced so to do because of information that the judgment would 
 go against him. In the course of the argument in the Exchequer 
 Chamber, Chief Justice Earle said of the landlord's liability : " If 
 he lets the premises with a nuisance, all parties agree that he is 
 responsible." 
 
 The reasons why the Exchequer Chamber recommended that the 
 plaintiff should accept a stet processus do not appear in the report. 
 But in 9 Best & S. 15, there is what purports to be the undeliv- 
 ered opinion of the court in that case, showing that the court had 
 5
 
 Q6 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 unanimously come to the conclusion to reverse tlie judgment of 
 the Queen's Bench, and in the opinion the case of liex v. Pedly 
 was again criticized, explained and limited as in prior cases. One 
 question in the case was whether a landlord who has the power to 
 determine a tenancy from year to year by giving notice, and who 
 does not exercise it, is to be held as thereby reletting the prem- 
 ises. In the opinion published in 9 Best & S. the ground on which 
 the Exchequer Chamber differed from that of the Queen's Bench 
 distinctly appears as follows : " We agree that to bring liability 
 home to the owner, the premises being let, the nuisance must be 
 one which was in its veiy essence and nature a nuisance at the 
 time of the letting, and not something which was capable of being 
 thereafter rendered a nuisance by the tenant, and that it is a sound 
 principle of law that the owner of property receiving rent should 
 be liable for a nuisance existing on his premises at the date of the 
 demise ; but that wherein we differ is that a landlord from year to 
 year having the power to give the ordinary notice to quit, and not 
 giving it, is thereby to be held as reletting the premises, and that 
 such failing to give notice is equivalent to a reletting." That 
 case then is an authority that devisees of premises under a lease 
 for a term, with no power in the devisees to terminate the lease 
 during the term, are not liable, although they received rent, for 
 a nuisance which they did not cause, create or authorize. 
 
 In Salmon v. Bensley, Ryan & M. 189, a nisi jprius case of 
 very doubtful authority, it was held that a notice to remove the 
 nuisance left at the premises is evidence against a subsequent oc- 
 cupier. That case has no bearing where the defendants were not 
 subsequent occupiers, and did not continue the nuisance. 
 
 In "Wood's Landlord and Tenant, 618, the author says : " When 
 a nuisance results from such want of repair, and there is no cove- 
 nant to repair on the part of either landlord or tenant, an action 
 may be maintained against either of them therefor." But he was 
 speaking of repairs which the landlord was bound by some law to 
 make. But there is no general law and no rule of law which im- 
 poses upon the landlord the duty to make repairs upon premises in 
 the occupancy of his tenant. At page 917 the learned author 
 states the proper rule for these cases. There he says : " The 
 landlord's right of possession being suspended during the term, it
 
 Chap, v.] NUISANCE DURING TERM OF LEASE. 67 
 
 follows that Lis liabilities in respect to the possession are also sus- 
 pended in respect to such matters or defects in the premises as 
 existed when the premises were let arising from the manner of 
 use or defective coustruction. If a nuisance existed upon the 
 premises at the time of the demise, the landlord, as well as the 
 tenant, is liable for the damages resulting therefrom, although it 
 only becomes a nuisance by the act of the tenant in using it for 
 ordinary purposes. And if the tenant creates a nuisance upon the 
 premises during the term by an unusual or extraordinary use 
 thereof, although the landlord cannot be made chargeable for the 
 consequences in the first instance, yet if he subsequently renews 
 the lease with the nuisance thereon, he becomes chargeable there- 
 for the same as though the nuisance had existed at the time of the 
 original demise ; and when a person is in possession as a tenant 
 from year to year, each year is treated as a reletting, so that the 
 landlord becomes chargeable for a nuisance created by the tenant 
 during a previous year which is in existence at the commence- 
 ment of the new year." And there is more to the same effect, as 
 there is also in Wood's Law of Nuisance, 78, 141. 
 
 In Clancy v. Byrne, 56 N. T. 129, the true rule was stated by 
 Folger, e/., who wrote the opinion. That was a case where plaintiff's 
 horse fell through a defective pier, and the action was against a 
 lessee who had covenanted with his landlord to make all ordinary 
 repairs. The lessee had sublet the pier, and was not in the occu- 
 pancy thereof, and it was held that if premises are in good repair 
 when demised, but afterwards become ruinous and dangerous, the 
 landlord is not responsible therefor, either to the occupant or to 
 the public, during the continuance of the lease, unless he has ex- 
 pressly agreed to repair or has renewed the lease after need of re- 
 pair has shown itself ; and that this rule applies to a lessee out of 
 possession who has sublet to another who is in possession. The 
 learned judge said : " Generally speaking the person responsible 
 for a nuisance is he who is in occupation of the premises on which 
 it exists. ... As between him who is landlord and owner 
 and him who is the lessee and occupant of the premises, there is in 
 general no obligation upon the former to keep them in repair, 
 
 where he has made no express contract to that effect 
 
 Numerous autliorities are cited. We have examined tliem all. It
 
 68 IMPOSED DUTIES, PEltSONAL. [Part I. 
 
 will be seen that in them the liability of the defendant is placed 
 upon one of these grounds, viz.: that he owned or had rights in 
 the premises, and leased them with the nuisance upon them ; 
 that he was in the possession of the premises and used them in 
 their defective condition ; that he was under a contract enforce- 
 able by plaintiff to keep the premises in repair and failed so to do; 
 that he in the first instance created the nuisance and put it in the 
 power of others to continue it ; or that, being a municipal corpo- 
 ration, there was a duty upon it to repair. If there are authorities 
 which in the remarks of the court reach farther than this, they 
 will be found to go beyond the needs of the case in hand." 
 
 If the owner has demised premises and covenanted to keep them 
 in repair, and omits to repair, and thus they become a nuisance, 
 he is liable;' and if the landlord is bound to repair and the ten- 
 ant can have his action for failure, to avoid circuity of action, 
 the party injured may sue both landlord and tenant in one ac- 
 tion.'* If the landlord agrees to keep the j3remises in repair and 
 neglects, he is liable, or if he knows their dangerous condition 
 and does not notify tenant.^ 
 
 b. Highzvays. 
 
 At common law the duty of keeping highways safe for travel 
 pertains ordinarily to the parish at large.* But since the traveler 
 might, when the highway became unsafe, pass over the adjacent 
 projDerty, the tenant of that proj^erty, who, if he chose, might 
 inclose it so as to exclude the traveler, became bound to keep the 
 road in front of his premises in repair.^ But this doctrine forms 
 no part of the American legal system. From very early times 
 the policy of the States has encouraged the building of fences and 
 the people have been accustomed to inclose their lands lying upon 
 their roads; yet the burden of maintaining the highways has 
 always been borne by the public wdth moneys raised under the 
 
 ^Benson v. Suarez, 43 Barb. 408; Chicago v. O'Brennan, 65 111. 160. 
 ^Lowell V. Spaulding, 4 Cush. 277; Larue v. Farren Hotel Co. 116 Mass. 67. 
 ^Edwards v. New York & R. B. Co. 98 N. Y. 245. 
 "^King v. Sheffield, 2 T. K. 106. 
 
 ^Sir Edward Duncomh's Case, Cro. Car. 366; Dovaston v. Payne, 2 Smith, 
 Lead. Cas. *2Uo, note.
 
 Chap, y.] ENCROACHMENTS UPON HIGHWAYS. <od 
 
 taxing power and no instance is known in wliich a public or pri- 
 vate prosecution has been sustained against the occupant of an 
 adjoining inclosure for mere omission to repair the road. Indeed, 
 it is a well-settled j^rinciple that the expense of keeping and im- 
 proving highways cannot be charged on the owner of abutting 
 lands, whether inclosed or not, merely because of tlieir frontage, 
 and this negatives the idea that the old English rule is enforced 
 among us. In some of the States a distinction has been drawn 
 between a road in general and the sidewalk ;* probably this is 
 occasioned on account of the peculiar privileges usually accorded 
 to the owner of land to use the adjacent sidewalk for stoops, areas, 
 chutes and other domestic and trade conveniences ; and on that 
 ground he has been held chargeable with the whole expense of 
 maintaiTiing this portion of the road.'' But even this liability has 
 not been extended beyond the limits fixed by express legislation. 
 No case has intimated that if the owner or occupant of abutting 
 premises had not in any way interfered with the side of the road 
 and had had no duty enjoined upon him in regard to it by statute 
 or lawful municipal regulation, he was under obligation to render 
 it fit or safe for passage.' Indeed such private duty is enforced 
 mainly for public benefit and forms an exception to the rule that 
 public advantage should be secured at public cost. It ought not 
 to be extended in any case beyond the point already recognized 
 by the authorities.* 
 
 c. Encroachments upon Highways.— JYuisctnces. 
 
 The right of parties upon public ways and streets is a public 
 right in which the whole community have an equal interest with 
 an equal right to complain of any infringement upon any such 
 right. Encroachments upon the right to pass along a public high- 
 way, which amount to public nuisances, which consist in doing a 
 thing to the annoyance of the public, or neglecting to do a thing 
 
 ^Defined in Eoufe v. Fulton, 34 Wis. 608. 
 
 mm V. Fond du Lac, 56 Wis. 242; Paxfton v. Sweet, 13 N. J. L. 196; State 
 
 V. Newark, 37 N. J. L. 415; State v. New Brunswick Street Gomrs. 42 N. 
 
 J. L. 510; State v. New Brunswick Street Comrs. 44 N. J. L. 116. 
 ''Bobbins v. Jones, 15 C. B. N. S. 221; Fisher v. Browse, 2 Best & S. 770. 
 *WeUer v. McCormick, 47 N. J. L. 397.
 
 70 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 which the common good requires," may be prosecuted in behalf 
 of the public' 
 
 Any obstruction which renders a highway, or any portion 
 thereof, less commodious is a nuisance,' and is prima facie in- 
 dictable.* To make an obstruction indictable it must injuriously 
 affect a right in which the public have an interest, and not a mere 
 private right or right of a definite number of persons.^ 
 
 The maintenance of a dam in such a manner as to cause M'ater 
 to overflow a highway and wash gullies therein constitutes a pub- 
 lic nuisance ; and if the town which is bound to maintain such 
 highway suffei's special damage from such nuisance, it may re- 
 cover the same against the party maintaining it ;' or one that 
 collects water upon other property may be restrained from con- 
 tinuino; the wrong.^ 
 
 In Davis v. Winslow, 51 Me. 264, cited with approval in Harold 
 V. Jones, 86 Ala. 274, 3 L. R. A. 406, the right to use watercourses 
 as highways, and the right to use highways upon land, are declared 
 to be analogous, and to depend on the same general principles. 
 The general rule is that an individual may maintain an action to 
 recover damages, who has suffered special injury in consequence 
 of obstructions to a highway, whether upon land or water, which 
 constitute public nuisances. Any and all of the public have an 
 equal right to the reasonable use of a highway, but the enjoyment 
 by one necessarily interferes to some extent, for the time being, 
 with its free and unimpeded use by others. 
 
 estate V. Godwinsnlle & P. M. B. Co. 49 N. J. L. 266, 9 Cent. Rep. 128; 3 
 Bl. Com. 216; 4 Bl. Com. 166; Wellbourn v. Davies, 40 Ark. 87; Bald- 
 win V. Ensign, 49 Conn. 117; Paducah & E. B. Co. v. Com. 80 Ky. 146; 
 Heeg v. Licht, 80 N, Y. 582; Noyes v. ShepJierd, 30 Me. 174; State v. 
 Portland, 74 Me. 271; Bonner v.Welborn, 7 Ga. 311; Burditt v. Swenson, 
 17 Tex. 502; Atty-Oen. v. Evart Booming Co. 34 Mich. 473; Chesbrough 
 V. Comrs. 37 Ohio St. 516; Anderson, Law Diet, title Nuisance; Yates v. 
 Warrenton, 84 Va. 337. 
 
 ^Iveson V. Moore, 1 Ld. Raym. 486; Davis v. New Fork, 14 N. Y. 506; Fair- 
 banks V. Kerr, 70 Pa. 86. 
 
 ^State V. Merritt, 35 Conn. 314; Pillsbury v. Brown, 82 Me. 450. 
 
 *Com. V. Nashua & L. B. Corp. 2 Gray, 56; Com. v. Gowen, 7 Mass. 378; 
 State V. Mobley, 1 McMull. L. 44; State v. Atkinson, 24 Vt. 448; State v. 
 Wilkinson, 2 Vt. 480; Shaw Y.Craioford, 10 Johns. 237; Freeman v. State, 
 6 Port. 372. 
 
 '^People V. Jackson, 7 Mich. 432. 
 
 ^Inhabitants of Charlotte v. Pembroke Iron Works (Me. Feb. 21, 1890), 8 L. R. 
 A. 828. 
 
 •^Kokomo V. Malian, 100 Ind. 242; Bobert v. Sadler, 104 N. Y. 229.
 
 Chap, v.] ENCROACHMENTS UPON HIGHWAYS. 71 
 
 'No precise definition of wliat constitutes a reasonable use, 
 adapted to all cases, can be laid down. Whether or not any par- 
 ticular use is reasonable depends on the character of the highway, 
 its location and purposes, and the necessity, extent and duration of 
 the use, under all the attendant and surrounding circumstances. 
 The general limitations upon the use are that when it constitutes 
 an obstruction to the highway it must be of a partial and tempo- 
 rary character, justified by necessity and convenience, and in tlie 
 ordinary and contemplated use of the highway. It must not be 
 incompatible with the reasonable free use by others, who may have 
 occasion to travel or transport over it ; and the obstruction must 
 not be continued longer than the continuance of the necessity, and 
 a reasonable time for its removal. On this principle a builder 
 may place the materials for an adjacent structure — a merchant 
 may place his goods — in a street, to be removed in a reasonable 
 time. Wagons, carts and other vehicles may stand in a highway 
 for the temporary purpose of loading or unloading. These are 
 not considered unlawful obstructions to a highway upon land. 
 
 Encroachment on a highway cannot be legalized by lapse of 
 time, and the public right to its use cannot be lost by negligence 
 of public ofiicers.' The doctrine is embodied in the maxim " nul- 
 lutn tempus occurrit regi^"* ' 
 
 IS'o length of time will legitimate a nuisance or enable a party to 
 prescribe for its continuance,' and buildings on highways acquire 
 no right from time or expenditure.* But in some States the right 
 thus to acquire title in a public street is recognized, and in Michi- 
 gan a decree directing that the walls of a building encroaching on 
 public streets be torn down was reversed, it appearing that the 
 building had projected over the line of the street four and one 
 half inches for more than twenty-five years.* 
 
 ^Tainter v. Morristown, 19 N. J. Eq. 59; Cross v. Morristown, 18 N. J. Eq 
 
 305; State v. Troth, 34 N. J. L. 379; State v. Trenton, 36 N. J. L. 201; 
 
 Eoboken L. & I. Co. v. Hoboken, Id. 549; Humphreys v. Woodstown, 48 N.' 
 
 J. L. 588, 7 Cent. Rep. 114; Inhabitants of Charlotte v. Pembroke Iron 
 
 Works (Me. Feb. 21, 1890) 8 L. R. A. 828. 
 ^Cross V. Morristown, 18 N. J. Eq. 311; Stoughton v. Baker, 4 Mass. 522; 
 
 Com. V. Upton, 6 Gray, 476; Jac. Law Diet, title King. 
 ^People V. Cunningham, 1 Denio, 536; Mills v. Hall, 9 Wend. 315; Dygert 
 
 V. Schenck, 23 Wend. 448. 
 *Com. V. Moorehead, 118 Pa. 344, 10 Cent. Rep. 611; Tates v. Warrenton, 84 
 
 Va. 337; State v. Pumroy, 73 Wis. 664. 
 ''Big Rapids v. Comstock, 65 Mich. 78, 8 West. Rep. 136, and cases cited.
 
 72 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 One who encroaches upon a street and contends that there is 
 no street at that place, or that he has acquired title bj adverse 
 possession, makes himself willfully guilty of such encroachment.* 
 
 d. Fiihlic Kuiscmces on Highways. 
 
 If one does or authorizes the doing of an act creating a public 
 nuisance, by obstructing a highway, he is answerable in damages 
 to those suffering injuries thereby." One who, in violation of an 
 express statutory duty, obstructs a public highway, cannot be 
 heard to say that he did not anticipate an injury which was the 
 direct result of his unlawful act, where the person injured was 
 without fault.^ 
 
 It is the duty of one who dedicates to the public use a highway 
 to warn of any nuisance existing therein known only to himself.* 
 
 A railroad constructed across a street in a city by a private per- 
 son or corporation, pursuant to an unlawful authority given by 
 the city authorities, is a public nuisance,^ and the use of steam as 
 a motive power for the movement of cars on a highway, at a place 
 where there is no authority for such use, in consequence of which 
 the property of an abutting owner is depreciated in value, consti- 
 tutes a nuisance.* 
 
 The use by a railroad company, under authority of its charter,, 
 of a portion of a street in its ordinary use as a means of travel 
 and transportation is not a perversion of the highway from its 
 original purposes. Any damage to the property abutting on the 
 street, resulting from such obstruction, is damnum absque injuria!! 
 Railways in streets of cities are not nuisances jper se^ and laying 
 
 ^CMlds V. Nelson, 69 Wis. 125. But see Parsons v. State, 26 Tex. App. 192. 
 
 ^Carlin v. Driscoll, 50 N. J. L. 28, 10 Cent. Rep. 178. 
 
 ^Emnsville & T. H. B. Go. v. Carvener, 113 Ind. 51, 12 West. Rep. 204. 
 
 *Byan v. Wilson, 87 N. Y. 471. 
 
 ^Glmsner v. Anheuser-Busch Brew. Asso. 100 Mo. 508. 
 
 ^Hassner v. Brooklyn City B. Go. 114 N. Y. 433; State v. Chicago, M. & St. 
 P. B. Co. 77 Iowa, 442, 4 L. R. A. 298. 
 
 ■'Porter v. North Mo. B. Go. 33 Mo. 128. 
 
 ^Hamilton v. Neio York & E. B. Co. 9 Paige, 171 ; Drake v. Hudson Biver B. 
 Co. 7 Barb. 508; Plant v. Long Island B. Co. 10 Barb. 26; Hentz v. 
 Long Island B. Co. 13 Barb. 646; Milhau v. Sharp, 15 Barb. 193; Will- 
 iams V. New York G. B. Co. 16 N. Y. 97; Davis v. New York, 14 N. Y. 
 506; Wetmore v. Story, 22 Barb. 414.
 
 Chap, v.] PUBLIC NUISANCES ON HIGHWAYS. 73^ 
 
 a railroad track through the streets of a city is not sn<"h an ol)- 
 siraction as necessarily to amonnt to a nuisance; and the city 
 authorities may grant permission to a railway company to lay such 
 a track.* So a railroad running through the streets of a city, 
 which does not materially interfere with the use of the streets for 
 ordinary purposes, or injure the value of the adjacent property, is 
 not a nuisance.' Nor can a public nuisance arise from a right 
 granted by law,' for it is not a nuisance to do what the law au- 
 thorizes ; but it is a tort to do an authorized act in a negligent 
 manner.* Therefore a railroad track laid upon a street of a city 
 by authority of law, properly constructed and operated in a skillful 
 and careful manner, is not in law a nuisance." Nor can the owner 
 of an abutting lot prevent the use of a street for a railway when 
 such use is permitted by the city and is authorized by an Act of 
 the Legislature." It follows, of course, that where the city au- 
 thorities lawfully grant permission to locate railway tracks along 
 a street, the owners or occupants of property fronting on such 
 street cannot enjoin the laying of such tracks, nor receive any 
 damage or compensation for such use of a street,^ and the con- 
 struction of a railroad will be enjoined for nothing short of the 
 threatened destruction of property of great value, resulting in 
 irreparable damage.* 
 
 An unguarded area not within the limits of, but so near to, an 
 alley as to endanger persons passing along the alley, is a public 
 nuisance,' and so is an unsecured covering to a coal-hole.*" 
 
 ^Sargent v. Ohio & M. B. Co. 1 Handy (Ohio), 52. 
 
 ^Hamilton v. Mw York & H. R. Co. 9 Paige, 171. 
 
 ^W. U. Tel. Co. V. Hewett (D. C), 4 Mackey, 424, 2 Cent. Rep. 695. 
 
 *North Vernon v. Voegler, 103 Ind. 314, 1 West. Rep. 560. 
 
 ^Bandle v. Pacific B. Co. 65 Mo. 332; Danville, H. & W. B. Co. v. Com. 7a 
 Pa. 38; Chicago & E. I. B. Co. v. Loeb, 118 111. 203, 5 West. Rep. 893. 
 
 ^Stetson V. Chicago & E. B. Co., 75 111. 74; Indianapolis, B. dt W. B. Co. v. 
 Hartley, 67 111. 439. 
 
 ''Moses V. Pittsburgh, F. W. & C. B. Co. 21 111. 516; Louisville & F. B. Co. 
 V. Brown, 17 B. Mon. 763. But see Chapter VI., following. 
 
 ^Dodge v. Pennsylvania B. Co. 43 N. J. Eq. 351, 10 Cent. Rep. 655. 
 
 ^Bo7id V. Smith, 44 Hun, 219; Crogan v. Schiele, 53 Conn. 186, 1 New Eng. 
 Rep. 305; Stuart v. Ravens, 17 Neb. 211; Beck v. Carter, 68 N. Y. 283 ; 
 Hayes v. Michigan C. B. Co. Ill U. S. 228, 28 L. ed. 410; Hadley v. Tay- 
 lor, L. R. 1 C. P. 53; Wettor v. Bunk, 4 Fost. & F. 298. 
 
 ^oQalvin v. Mw York, 112 N. Y. 233; Jennings v. Van Schaick, 13 Daly^ 
 438; Dalay v. Savage, 145 Mass. 38; Calder v. Smalley, 06 Iowa, 219; Ir- 
 win V. Fowler, 5 Robt. 483; Tomle v. Hampton, 139 111. 379.
 
 /4 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 ♦ 
 
 The use of parts of certain streets and sidewalks in front of 
 a dwelling-honse, by hucksters, as a market place, by permission of 
 the city officers on payment of a license fee, constitutes not only a 
 public nuisance, but, as to the owner and tenants occupying it, a 
 private nuisance, entitling those aggrieved to an injunction against 
 the city as the wrong-doer.' 
 
 If the owner of the soil lays out a street on his land between high 
 and low water mark, the right to use it becomes appurtenant to the 
 lands of the adjoiners ; and anything which obstructs such right 
 is a nuisance." A gate and shed erected on an alley after a grant of 
 land to which it was made appurtenant, without the grantee's con- 
 sent, are properly assumed nn\sances 2Jer se, in case of their continu- 
 ance after a former verdict on the case for their erection ; and 
 the grantee may recover damages for their continuance after the 
 former recovery, although they do not materially interfere with 
 his use of the alley.* 
 
 Whe]'e teamsters sj)end their idle time, with their horses and 
 wagons, in a public street in front of a private dwelling, to such 
 an extent that noxious odors are created which are carried into 
 the dwelling, it is an unlawful use of the street, and will be en- 
 joined ; and complainant's motives cannot be inquired into;* nor 
 may hacks occupy such space creating annoyance to persons in 
 private dwellings f nor may any person attract crowds and in- 
 terrupt business f nor may cars obstruct the way before resi- 
 dences unnecessarily.'' 
 
 The highway may be a convenient place for the owners of car- 
 riages to keep them in, but the law, looking to the convenience of 
 the greater number, prohibits any such use of the public streets. 
 The old cases said the king's highway is not to be used as a stable 
 yard, and a party cannot eke out the inconvenience of his own 
 
 ^McDonald v. Newark, 43 N. J. Eq. 136, 5 Cent. Rep. 647. 
 
 ^Richardson v. Boston, 60 U. S. 19 How. 263, 15 L. ed. 639. 
 
 ^EUis V. American Academy of Music, 120 Pa. 608. 
 
 *Lippincoa v. Lasher, 44 N. J. Eq. 130, 12 Ceat. Rep. 238. 
 
 ^McCaffrey v. Smith, 41 Hun, 117. 
 
 *Jaqiies v. National Exhibit Co. 15 Abb. N. C. 250; Williams v. Tripp, 11 
 
 R. I. 447. 
 ''Angel v. Pennsylvania B. Co. 38 N. J. Eq. 58; Hopkins v. Western P. R. Go. 
 
 50 Cal. 190.
 
 Chap. Y.] PUBLIC nuisances; abatement of. 75 
 
 premises by taking in the public higliway. These general state- 
 ments are familiar and borne out by the cases.* 
 
 Sliding in a street, accompanied by boisterous conduct liable to 
 frighten horses traveling therein, may be a public nuisance ; but 
 one damaged thereby must show that it was the proximate cause 
 of his damage, to enable him to recover from one creating it.' 
 
 e. Tiiblic JVuisances ; Al>ateinent of. 
 
 A public nuisance can only be redressed by a public prosecu- 
 tion, unless the party complaining suffers some peculiar damages 
 differing in kind from those sustained by the public at large.' 
 
 The general rule is that individuals are not entitled to redress 
 against a public nuisance. The private injury is merged in the 
 common nuisance and injury to all citizens, and the right is to be 
 vindicated and the wrong punished by a public prosecution, and 
 not by a multiplicity of separate actions in favor of private per- 
 sons.* If the complainant can show that the construction and 
 maintenance of a railway in front of his premises will result only 
 in special injury to him, his remedy will be at law for the special 
 
 ^Cohen v. New York, 113 N, Y. 536. 4 L, R. A. 406; Rex v. Rimell, 6 East 
 437; Rex v. Cross, 3 Camp. 224; Rex v. Jonea, 3 Camp. 230; People v! 
 Cunningham, 1 Denio, 524; Davis v. New York, 14 N. Y. 524- Callanan 
 V. Oilman, 107 N. Y. 360, 9 Cent. Rep. 900. 
 
 'Jackson v. Castle, 80 Me. 119, 5 New Eng. Rep. 857. 
 
 ^ScJmoI District No. 1 v. Neil, 36 Kan. 617. 
 
 *Wesson V, Washburn Iron Co. 13 Allen, 95, 101 ; Stetson v. Faxson, 19 Pick 
 147; Thayer V. Boston, 19 Pick. 511, 514; Borden v. Vincent, 24 Pick. 301- 
 Quimy Canal Co. v. Newcomb, 7 Met. 276, 283; Holman v. Towmerid 13 
 Met. 297, 2^Q;Brainard v. Conn. River R. Co. 7 Cush. 506, 511; Harvard 
 College v. Stearns, 15 Gray, 1 ; Fall River Iron Works Co. v. Old Colony <$■ 
 F. B. R. Co. 5 Allen, 224; Shaubut v. St. Paul & S. G. R. Co. 21 Minn 
 502; Qrigsbyv. Clear Lake Water Works Co. 40 Cal. 396; Gordon y Barter 
 74 N. C. 470; Re Eldred, 46 Wis. 530, 541; Hatch v. Vermont C. R. Co 28 
 Vt. 142; Low V. Knowlton, 26 Me. 128; Lansing v. Smith, 8 Cow. 146 4 
 "Wend, 9; Lansing v. Wiswall, 5 Denio, 213, 5 How. Pr. 77; Foi-t Plain 
 Bridge Co. v. Smith, 30 N. Y. 4:^; Anderson y . Rochester, L. i&N. F. R. Co. 
 9 How. Pr. 553; Dougherty v. Bunting, 1 Sandf. 1; Osbornv. Union Ferry 
 Co. 53 Barb. 629; State v. Thompson, 2 Strobh. L, (S. C.) 12; Georgetown 
 St. Comrs. v. Taylor, 2 Bay (S. C.) 282; Harrison v. Sterrett, 4 Harr «& 
 McH. 546; Flynn v. Canton Co. 40 Md. 312; Walter v. Wicomio> Co 35 
 Md. 385; South Carolina R. Co. v. Moore, 28 Gu. 398; Jifor^aw v. Graham 
 1 Woods, 124; Lewiston Tump. Co. v. Shasta & W. Wagon Road Co 41 
 Cal. 562; Gould, Waters, 222.
 
 76 IMPOSED DUTIES. PERSONAL. [Part I. 
 
 damage, and not by injunction.* The remedy for obstruction of 
 a highway is an action by the town." At common law the rem- 
 edy is by indictment.' 
 
 Where the town authorities suffered a fence to remain across a 
 street until there seemed to them a need for its public use, the 
 fence should be removed ; all erections put upon the street are 
 mere encroachments made by parties at their peril, and may 
 be removed by the town authorities." 
 
 Under the Mississippi statutes the board of mayor and alder- 
 men of the town has jurisdiction to order the removal of a fence 
 across a street.^ 
 
 If timber standing upon a roadway obstructs or impairs the use 
 of the road by the public, it is the duty of the overseer of the 
 road to have it removed ; and the overseer's authority is sufficient 
 to protect another, whom the overseer permitted to cut the timber, 
 against all criminal liability.' 
 
 An action to abate a nuisance caused by obstructing the high- 
 way, under the California Political Code, as amended, is properly 
 brought in the name of the overseer of the road district wherein 
 the obstruction exists.' 
 
 Abatement of nuisance is under police power of States.* 
 
 f. Injunction to Restrain JYuisances in Streets. 
 
 A municipality, having the control and supervision of the pub- 
 lic hio-hways within its territorial limits, may maintain a suit in 
 equity to prevent any alteration of the streets, or injury to them, 
 which will deprive the public of their use.' The mayor and com- 
 
 ^ Osborne v. Brooklyn City R. Co. 5 Blatchf. 366; Currier v. West Side E. P. 
 Co. 6 Blatcbf. 487; Morris & E. B. Co. v. Prudden, 20 N. J. Eq. 530; 
 Zabriskie v. Jersey City & B. R. Co. 13 N. J. Eq. 314; HincTimanv. Pater- 
 son Horse R. Co. 17 N. J. Eq. 75; Chicago v. Union Bldg. Asso. 102 111. 
 879; Lorie v. Noi-th Chicago City R. Co. 32 Fed. Rep. 27. 
 
 Weerfield v. Conn. River R. Co. 144 Mass. 325, 4 New Eng, Rep. 189. 
 
 ^Ronayne v. Loranger, 66 Mich. 373, 10 West. Rep. 523; R^spublica v. Ar- 
 nold, 3 Yeates, 417; 3 Bl. Com. chap. 13; 1 Chitty, Pr. 383. See Camp- 
 bells. Pennsylvania S. V. R. Co. (Pa. March 5, 1888) 11 Cent. Rep. 660. 
 
 *Lake View v. Le Bahn, 120 111. 92, 6 West. Rep. 786. 
 
 ^Mxon V. Bilaxi (Miss. Feb. 25, 1889) 5 So. Rep. 621. 
 
 ^Cooper V. Langioay, 76 Tex. 121. 
 
 •'Bailey v. Bale, 71 Cal. 34. 
 
 8 See note to Pine City v. Munch (Minn. .Jan. 14, 1890) 6 L. R. A. 763. 
 
 ^Jersey City v. Central B. Co. 40 N. J. Eq. 417, 4 Cent. Rep. 327.
 
 Chap. Y.] INJUNCTION TO KESTKAIN NUISANCES IN STREETS. 77 
 
 men council are proper persons to file a bill to prevent obstruction 
 or destruction of streets.' 
 
 For an obstruction to a pnblic highway an injunction is not a 
 favored remedy, whether souglit by the public or an individual. 
 To justify its issue at the suit of an individual, the injury must be 
 special, pressing and otlierwise irremediable ; and, as a condition 
 to the issue of permanent injunction, the right must either not be 
 in controversy or have been settled at law.^ Even in the case of 
 an obstruction to a public street amounting to a public nuisance, 
 the court of chancery is loath to act by injunction.* The real 
 injury is to the public, if there be any injury ; private persons 
 cannot sustain their suit unless they show clearly a sj)ecial and 
 peculiar damage, distinct from that suffered by the public at large.* 
 The official action of corporate officers should not be interfered 
 with or restrained unless it be injurious and wrongful in its nat- 
 ure, especially where the parties aggrieved have an adequate 
 remedy at law and the pecuniary responsibility of the defendants 
 is unquestioned.* If the right of the public to the use of a high- 
 way is clear, and a special injury is threatened by an obstruction 
 of the highway, and this special injury is serious, reaching the 
 very substance and value of the plaintiff's estate, and is permanent 
 in its character, a court of equity by an injunction ought to pre- 
 vent such a nuisance." 
 
 ^Newark v. Delaware, L. & W. B. Co. 43 N. J. Eq. 196, 5 Cent. Rep. 629. 
 
 Urwin v. Dixion, 50 U. S. 9 How. 10. 13 L. ed. 35. 
 
 ^Pavonia Land Asso. v. Feenfer (N. J. Jaa. 3, 1887) 5 Cent. Rep. 640. 
 
 ^Wheeler v. Bedford, 54 Conn. 246, 3 New Eng. Rep. 831; O'Brien v. Nor- 
 wich &W. B. Co. 17 Conn. 375; Frink v. Lawrence, 20 Conn. 120; Clark 
 V. Saybrook, 21 Conn. 313, 327; Lexinglon & 0. B. Co. v. Applegate, 8 
 Dana, 299; McKeon v. See, 4 Robt. 466; Gilbert v, Mickle, 4 Sandf. Ch. 
 357, 7 N. Y. Ch. L. ed. 1132. 
 
 ^Davis V. Amer. Society for Prev. Cruelty to Animals, 6 Daly, 85, 16 Abb. 
 Pr. N. S. 78; Sterman v. Kennedy, 15 Abb. Pr. 201; Moore v. Pilot 
 Comrs. 33 How. Pr. 184; Prendorill v. Kennedy, 34 How. Pr. 416. 
 
 ■^Keystone Bridge Co. v. Summers, 13 W. Va. 485; Mohaick Bridge Co. v. 
 Utica & S. B. Co. 6 Paige, 563, 3 N. Y. Ch, L. ed. 1103; Jerome v. Boss, 
 7 Johns. Ch. 323, 3 N. Y. Ch. L. ed. 308.
 
 CHAPTER yi. 
 
 INVASION OF EASEMENT IN STREET. 
 
 Sec. 13. Private Right of Action for Injury to Easement in High- 
 way. 
 
 a. Easement of Lot Oioner in Street. 
 
 b. Street Railroad. — Grant of Privilege. 
 
 c. Steam Street Railroad — Excluded. 
 
 d. Permitted. 
 
 e. Fee of Street in the Public. — Release. 
 t Electric Motors. 
 
 g. Telegraph and Telephone Poles. 
 
 Ji. Drains and Electric, Gas and Water Conductors. 
 
 Section 12. — Private Right of Action for Injury to 
 Easement in Highway. 
 
 A special and peculiar injury irreparable in its nature, and dif- 
 ferent in kind from that sustained by the general public, is nec- 
 essary to give a private right of action for a public nuisance.' In 
 the case of a public nuisance, it does not follow that suit can- 
 not be brought by a private person, because the State, at the rela- 
 tion of the law officer, can bring suit. Personal wrongs may be 
 both public and private, in which case the individual injured has 
 his action." 
 
 An action will lie against an individual or private corporation 
 maintaining a nuisance, by one who has suffered special damage 
 therefrom,^ but an individual can only maintain an action for dam- 
 ages by reason of a nuisance when some right of his own has 
 been invaded.* A nuisance may be both public and private in its 
 character, and, in so far as it is private, the person who suffers a 
 
 ^Fogg V. Nevada G. 0. B. Co. 20 Nev. 429. 
 
 ^Oummings v. St. Louis, 90 Mo. 259, 7 West. Rep. 274; McDonald v. Netcark, 
 
 42 N. J. Eq. 136, 5 Cent. Rep. 649. 
 ^Mehrhof Bros. Brick Mfg. Co. Y.Delaware, L. & W. B. Co. 51 N. J. L. 56. 
 *Henry v. Newburyport, 149 Mass. 583, 5 L. R. A. 179.
 
 Chap. VI.] PRIVATE RIGHT OF ACTION. Yl> 
 
 special damage therefrom has a riglit of action.' Tlic special 
 damage must be beyond that which is suffered in common with 
 the public." One who suffers special injury, no matter how in- 
 considerable, from a common nuisance, may recover damages, in 
 an action at law, from the person creating it," and from the per- 
 son maintaining it after request to abate it.* But for any act ob- 
 structing a common and public riglit no action will lie for private 
 damages of the same kind as those sustained by the general public, 
 though in a much greater degree.^ In case of public nuisance, 
 the plaintiff must aver special damages to him, inasmuch as the 
 law does not presume or imply damage to any particular indi- 
 vidual from the public offense." Damages may be recovered for 
 a peculiar private injury caused thereby, though a like injury is 
 sustained by numerous other persons.'' It is not enough that in- 
 jury is shown, but it must be different in kind from that sustained 
 
 ^ParkY. Chicago & S. W. B. Co. 43 Iowa, 636; Crommelin v. Coxe, 30 Ala 
 318; Abbott v. Mills, 3 Vt. 521; Mills v. Hall, 9 Wend. 315; Myen. v. Mal- 
 colm, 6 Hill, 292; Hay v. Cohoes Co. 3 Barb. 48; Fort Plain Briilqe Co v 
 Smith, 30 N. Y. 62; Welton v. Martin, 7 Mo. 307; Orirjsby v. Clear Lake 
 Water Works Co. 40 Cal. 396; Venard v. Cross. 8 Kan. 248; Clark v. Peck- 
 ham, 10 R. I. 35; Greene v. Nunnemacher, 36 Wis. 50; Spencer v. London 
 & B. R. Co. 8 Sim. 193; Sampson v. Smith, 8 Sim. 272; Cook v. Bath, L. 
 R. 6Eq. 177; Hickok v. Hine. 23 Ohio St. 523; Mississippi & 31. R.' Co. 
 V. Ward, 67 U. S. 2 Black, 485, 17 L. ed. 311; Irwin v. JJlxion, 30 U. S. 
 9 How. 10, 13 L. ed. 25; Parker v. Winnipiseogee Lake C. & W. Mfg. Co. 
 67 U. S. 2 Black, 545, 17 L. ed. 333; Pennsyhania v. Wlieeling & B. Bridq'e 
 Co. 54 U. S. 13 How. 518, 561, 14 L. ed. 249, 267; Eicdl v. Greenwood, 26 
 Iowa, 377; Musser v. Hershey, 42 Iowa, 356; Works v. Junction R. Co. 5 
 McLean, 425; Vnited States v. Railroad Bridge Co. 6 McLean, 517; Spoon- 
 er V. McConnell, 1 McLean, 337; Treat v. Bates, 27 IMich. 390; Walker v. 
 Shepardson, 2 Wis. 384, 4 Wis. 486; Hamilton v. Whitridge, 11 ]VId. 128; 
 Columbus V. Jaques, 30 Ga. 506; Savannah, A. & G. R. Co. v. Shields, 33 
 Ga. 601; Potter v. Menasha, 30 Wis. 492; Draper v. Mackey, 35 Ark. 497; 
 Adams Y. Popham, 76 N. Y. 410; Sparhawk v. Union Passenger R. Co'. 
 54 Pa. 401; Princes. McCoy, 40 Iowa, 533; Manhattan Gaslight Co. v. 
 Barker, 36 How. Pr. 233; Penniman v. N. T. Balance Co. 13 How. Pr. 
 40; Parrish v. Stephens, 1 Or. 73; Shed v. Hawthorn, 3 Neb. 185; Kittle 
 V. Fremont, 1 Neb. 329; Gould, Waters, 218; 3 Sutherland, Damages, 423. 
 
 ^Dudley v. Kennedy, 63 Me. 465; Yolo Co. v. Sacramento, 36 Cal. 193; Co- 
 burn V. Ames, 52 Cal. 385; Cok v. Sprowl, 35 Me. 161; Harriion v. 
 Sterett, 4 Har. & McH. 540; Runyon v. Bordine, 14 N. J. L. 472; Baxter 
 V. Winooski Tump. Co. 22 Vt. 114; Hatch v. Vermont C R. Co. 28 Vt. 
 142; Brown v. Watson, 47 Me. 161; 3 Sutherland, Damages, 424. 
 
 *Brown v. Watson, 47 Me. 161 ; Dudley v. Kennedy, 63 Me. 465. 
 
 *Pilhbury v. Moore, 44 Me. 154; Holmes v. CortMl, 80 Me. 31. 5 New Ene. 
 Rep. 794. ^ 
 
 'Whiisett v. Union D. & R. Co. 10 Colo. 243. 
 
 ^Hartt V. Evans, 8 Pa. 13; 1 Sutherland, Damages, 766. 
 
 "'Francis v. Schoellkopf, 53 N. Y. 152; Soltau v. DeHeld, 2 Sim. N. S. 133.
 
 80 IMPOSED DUTIES, PEESONAL. [Part I. 
 
 Ijy the community at large.' The particular damage is the gist of 
 the action, and must be specially set forth in the declaration." In 
 Xew York any expense or delay, however trifling, incurred by 
 one member of the public in removing an unlawful obstruction 
 in a highway has been held to be ground for an action.' 
 
 The construction and use of gas-works, the percolations from 
 the refuse of which pollute and make the water in the wells of an 
 adjoining land owner unfit for household purposes and for the use 
 of stock, is a nuisance, and the party injured is entitled to damages." 
 
 If the water of a well is rendered impure by an escape of gas 
 therein, the fact that other causes contributed to make it unfit for 
 use is not a bar to an action, but may be shown to affect the 
 amount of damages." Petroleum oil, like subterranean water, is 
 included in the idea which the law attaches to the word " land," 
 and is a part of the soil in which it is found.' 
 
 Where a wall to prevent the earthwork of a street from en- 
 croaching upon adjoining premises is a part of the plan approved 
 by the common council for the improvement of a street, and no 
 error of the judgment or discretion of the council in aj)proving it 
 is shown, or any defect in the construction, no recovery can be had 
 on account of the inconvenience occasioned by it.'' 
 
 In trespass for encroachment upon a highway, where defendant 
 gives notice that he will prove location of the fence to be upon 
 
 ^HoucJcv. Wachter, 34 Md. 265; ScJiall v. Nusbaum, 56 Md. 513; Gilbert v. 
 
 Morris Canal <& Bkg. Go. 8 N. J. Eq. 495. 
 ^Baker v. Boston, 12 Pick. 184, 196; Atkins v. Boardman, 2 Met. 457; 
 
 Houck V. Wachter, 34 Md. 265; Baxter v. Winooski Tump. Go. 22 Vt. 
 
 114; Hall v. Kitson, 4 Chand. (Wis.) 20; Greene v. Nunnemarlier , 36 
 
 Wis. 50; Powers v. Bnsh, 23 Midi. 429; DwinelY. Venzie, 44 Me. 167, 
 
 175; Memphis & 0. B. Co. v. Hicks, 5 Sneed, 427; Boseburg v . Abraham, 
 
 8 Or. 509; Farrellyv. Cincinnati, 2 Disn^j (01iio)516; Taylor y. Monroe, 
 
 43 Coun. 36; Tomlinson v. Derby, 43 Conn. 562; South Carolina v. 
 
 Georgia, 93 U. S. 4, 14, 23 L. ed. 782, 785; Smith v. McConathy, 11 Mo. 
 
 517; Payne v. McKinley, 54 Cal. 532. 
 *Pierce v. Dart, 7 Cow. 609; Lansing v. Wiswall, 5 Denio, 213; Lansing v. 
 
 Smith, 4 Wend. 9, 8 Cow. 146; Hudson Ricer B. Co. v. Loeb, 7 Robt. 418. 
 *Penmcola Gas Co. v. Pebley (Fla. Feb. 5, 1889) 5 So. Rep. 593. But see 
 
 Dillonv. Acme Oil Co. 49 Hun, 565. 
 ^Sherman v . Fall River Iron Works Co. 5 Allen, 213. 
 *Hail V. Reed, 15 B. Mon. 479; Kiev v. Peterson, 41 Pa. 357; Peterson v. Kier, 
 
 2 Pittsb. Rep. 191; Chicago & A. Oil & Min. Co. v. JJ. 8. Petroleum Co. 57 
 
 Pa. 83; Stoughton's App. 88 Pa. 198. 
 "Watson V. Kingston, 114 N. Y. 88.
 
 Chap, yi.] EASEMENT OF LOT OWNER IN STREET. 81 
 
 his own soil, title to the soil is in issue.' Until service upon liini 
 of an order locating the encroachment, defendant need not serve 
 a notice denying existence of the highway.^ 
 
 A petition in trespass against a railway company, for heaping 
 up earth on land outside its right of way, need not aver neg- 
 ligence.' As against the owner of the soil over which a street 
 passes, a trespasser cannot set up as a defense the existence of an 
 easement which the public or a third person may liave in the 
 premises.* 
 
 a. Easement of Lot Owner in Street. 
 
 One whose only means of ingress to and egress from build in o-s 
 on his lauds is by a public alley or highway has such a special in- 
 terest in the way, not common to the public generally, as entitles 
 him to maintain a private action for damages for the obstruction 
 of the highway.^ But the fact that adjoining owners have more 
 occasion to use the street in front of them than most others have, 
 and that the inconvenience and annoyance to them from a nui- 
 sance created by a railroad in the street is greater in degree than 
 it is to other citizens, does not authorize a private right of action.' 
 Nor is an adjacent owner entitled to any damages for the ob- 
 struction of a highway on the ground merely of inconvenience in 
 passing along the way.' 
 
 In Adams v. Chicago, B. & N. R. Co., 39 Minn. 286, 1 L. E. A. 
 493, is a clear and forcible presentation of the interest of the lot 
 owner in the street. It is said that there are a great many cases 
 in which is stated, in general terms, the proposition that, althouo-h 
 the fee of the street be in the State or municipality, the owner of 
 an abutting lot has, as appurtenant to his lot, an interest or ease- 
 
 ' Wsburn v. Longsduff, 70 Mich. 127, 14 "West. Rep. 212. 
 
 ^McCord V. DonipTian B. B. Co. 21 Mo. App. 92, 3 West. Rep, 395. 
 
 *Hurley v. Mississippi & B. B. Boom Co. 34 jMinn. 143. 
 
 ^Fassion v. Landrey (Ind. April 5, 1890) 24 N. E. Rep. 96; Emnsville v. Page, 
 23 Ind. 525; Indianapolis v. Kingsbury, 101 lud. 200; 2 Dill. Muu. Corp. 
 (3d ed.) § 640. 
 
 *Fogg V. Nevada C. 0. B. Co 20 Nev. 429. 
 
 ^McDonneU v, Cambridge B. Co. 151 Mass. 159. 
 
 6
 
 82 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 ment in the street in front of it, which is entirely distinct from 
 the interest of the public* 
 
 In Grand Rapids & I. R. Co. v. Heisel, 38 Mich. 62, the su- 
 preme court states it thus: " Every lot owner has a peculiar inter- 
 est in the adjacent street, which neither the local nor general 
 public can pretend to claim; a private right in the nature of an 
 incorporeal hereditament, legally attached to his contiguous 
 ground ; an incidental title to certain facilities and franchises 
 which is in the nature of property, and which can no more be- 
 apj)ropriated against his will than any tangible property of which 
 he may be owner.'"* 
 
 Although the proposition was apparently stated with care and 
 upon deliberation, it is suggested that the decision of the case was 
 a departure from the doctrine thus laid down — and the same may 
 be said of several of the cases referred to ; for where the railroad 
 was laid upon a part of the street opposite the party's lot, of which 
 part he did not own the fee, it denied his right to recover for 
 damages caused to his lot incidental to a proper operating of the 
 railroad, and limited it to cases where the acts of the company,, 
 of omission or commission, amounted to a nuisance. 
 
 As the lot owner can recover for a private nuisance committed 
 by the improper operation of a railroad, even on the company's 
 own land, in which he has no interest,' it would seem, it is said, 
 if he is in no better plight in respect to the company's acts in the- 
 street, that his "peculiar interest," distinct from that of the public,' 
 in the street is of very little value. His title to his interest in the 
 street is precarious, if authority from the State or municipality 
 
 ^ Grand Rapids & I. B. Co. v. Heisel, 38 Mich. 62; Lexington & 0. R. Co. v. 
 Applegaie, 8 Dana, 294; Elimbethtown, L. &B. S. R. Co. v. Combs, 10 Bush, 
 382; HaynesY. TJiomas, llndi. 38; Protzmanv. Indianapolis & G. R. Co. 9" 
 Ind. 467; Stone v. Fairbury, P. & N. W. R. Co. 68 111. 394; Tate v. Ohio 
 & M. R. Co. 7 Ind. 479; Lackland v. Nortli Missouri R. Co. 31 Mo. 180; 
 Cincinnati & S. G. Ave. St. R. Co. v. Cwmminsville, 14 Ohio St. 523; Scioto 
 Valley R. Co. v. Lawrence, 38 Ohio St. 41; Crawford v. Delaware, 7 Ohio 
 St. 459; Denver v. Bayer, 7 Colo. 113; Rensselaer v. Leopold, 106 Ind. 
 29, 3 West Rep. 874; Griffin v. Shreveport & A. R. Co. 41 La. Ann. 808. 
 
 'See also Atchison St. R. Co. v. Nave, 38 Kan. 752; Fogg v. Nevada 0. 0. R. 
 Co. 20 Nev. 429; Neitzey v. Baltimore & P. R. Co. 5 Mackey, 34, 3 Cent. 
 Rep. 773; Jackson v. Kiel, 13 Colo. 378, 6 L. R. A. 254; Lexington & O. 
 R. Co. V. Appjlegate, 8 Dana, 294; Elizabethtoicn, L. &B. 8. R. Co. v. Combs, 
 10 Bush, 382; Haynes v. Thomas, 7 Ind. 38; Protzman v. Indianapolis <k 
 C. R. Co. 9 Ind. 467; Stone v. Fairbury, P. & N. W. R. Co. 68 111. 394. 
 
 ^Baltimore & P. B. Co. v. First Baptist Church, 108 U. S. 317, 27 L. ed. 739.
 
 Chap. VI.] EASEMENT OF LOT OWNER IN STREET. 
 
 83 
 
 may jnstify what would without such authority be a private 
 wrono- as to him. JSTone of the cases, till we come to what 
 are known as the Elevated Railway Cases, attempt to define the 
 limits and extent of the right of an abutting lot owner in the 
 street opposite his lot, where he does not own the fee. That it 
 extends to purposes of ingress and egress to and from his lot is 
 conceded by all. And for this purpose it may extend beyond the 
 part of the street directly in front; for, an action by him will lie 
 for obstructing the street, away from his lot, so as to cut off or 
 materially interfere with his only access to it. 
 
 The questions are then asked. How does the lot owner get an 
 easement in the street? "What are the source and evidence of his 
 title to his peculiar interest? And the same questions may be 
 asked with respect to the right or interest of the public. When 
 a street is established by statutory dedication or proceedings of 
 condemnation, the public derives its right through the dedication 
 or proceedings, and the record of them is the evidence of its right. 
 "When the dedication is at common law, the evidence of the pub- 
 lic right rests in parol. "When the offer of dedication is made, 
 and is accepted and acted upon by the public to such extent that 
 to permit the offer to be withdrawn would operate as a fraud, the 
 title of the public to its right is completely vested. And such 
 title is none the less perfect because there may be no express grant 
 of the right, and no written evidence of it. The private right is 
 vested by the same proceedings or acts that vest the public right. 
 There is no need of express grant in one case more than in the 
 other. In a case of dedication, after it has become perfect the 
 abutting lot owners are presumed to act with respect to their lots 
 on the faith of it, as they are also in a case of condemnation. 
 
 The question is stated thus : Suppose one buys a piece of land 
 fronting on a public street, or suppose he improves it, say by erect- 
 ing buildings with reference to use in connection with the street, 
 M' ould it not be a fraud on him to afterwards close the street ? 
 JSfot only do the abutting lot owners pay for all the advantages 
 which the street may furnish to their lots in the enhanced price of 
 the lots, but, in cases of condemnation, their lots are liable to be, 
 and are usually, specially taxed to pay the whole cost of the land 
 taken; and, whether the street be established by dedication or
 
 84: IMPOSED DUTIES, PERSONAL. [Part I. 
 
 condemnatioHj the abutting lots are liable to be, and are usually, 
 specially taxed for the whole cost of putting and keeping it in 
 proper condition for public use. It would, it is thought, be hard 
 to justify the imposition of these taxes on them instead of on the 
 public at large, if their owners have no other interest in or ad- 
 vantage from the street beyond the public at large, or if such 
 interest or advantage is of so precarious a tenure that they may at 
 any time be deprived of it. 
 
 It is, however, hardly necessary to inquire how the lot owner 
 gets his private right in the street ; for it is established law that 
 he has a private right, which extends to the necessity of access.' 
 Access to the lot is only one of the direct advantages which the 
 street affords to it. In a city densely peopled and built up, the 
 admission of light and air into buildings is about as important to 
 their proper use and enjoyment as access to them. Light and air 
 are largely got from the open space which the streets afford. 
 
 What reason, it is asked, can be given for excluding a right to 
 the street for admitting light and air, when the right to it for ac- 
 cess is conceded ? For mere purposes of access to the lots, a strip 
 ten or fifteen feet wide might be sufficient. Tet everybody 
 knows that a lot fronting on a street sixty or seventy feet wide 
 is more valuable, because of the uses that can be made of it, than 
 though it front on such a narrow strip. Take a case in one of 
 the States where the fee of the streets is in the State or munici- 
 pality, and of a street sixty feet wide. The abutting lot owners 
 have paid for the advantages of the street on the basis of that 
 width, either in the enhanced price paid for their lots, or, if the 
 street was established by condemnation, in the taxes they have 
 paid for the land taken. In such a case, if the State or munici- 
 pality should attempt to cut the street down to a width of ten or 
 fifteen feet, would it be an answer to objections by lot owners 
 that the diminished width would be sufficient for mere purposes 
 of access to their lots ? The question suggests the answer. 
 
 The cases known as the Elevated Railway Cases'^ are notable as 
 the first cases in which was squarely presented, so as to demand a 
 direct decision, the claim of abutting lots to an easement in the 
 
 ^Fassion v. Landrey (Ind. April 5, 1890) 24 N. E. Rep. 96. 
 ^Story V. N. Y. Elevated R. Co. 90 N. Y. 122; LaJi,?- v. Metropolitan Elevated 
 B. Co. 104 N. Y. 268, 6 Cent. Rep. 371.
 
 Chap. YI.] EASEMENT OF LOT OWNER IN STKEET. 85 
 
 street in their front, for pnrposes of light and air, and are valnahle 
 also for the exhaustive character of both the prevailing and dis- 
 senting opinions by the members of the court. The latter cases 
 are really a reargument of the questions decided in the earlier ; 
 and in its opinion the court not only adhered to, but took pains to 
 define, its earlier decision, and in some respects to go beyond it, 
 and give to the principles determined a wider application than 
 appears to have been given to them in the first case. In those 
 cases the doctrine is unqualifiedly established that no matter how 
 the abutting owner acquires title to his land, and no matter how 
 the street was established, so that the only right of the public is 
 to hold it for public use as a street forever (and the public can 
 acquire no greater right under a dedication), and no matter who 
 may own the fee, "an abutting owner necessarily enjoys certain 
 advantages from the existence of an open street adjoining his 
 property which belong to him by reason of its location, and are 
 not enjoyed by the general public , such as the right of free access 
 to his premises, and the free admission and circulation of light 
 and air to and through his property." The doctrine was followed 
 and applied by the Circuit Court of the United States for the 
 Southern District of New York in New York Nat. Bank v. New 
 York Elevated R. Co., 24 Fed. Eep. 114. The general doctrine 
 stands on sound reason and considerations of practical justice. 
 
 TJie private right in a street is of course subordinate to the pub- 
 lic right. The latter right is for use as a public street, and the 
 incidental right to put and keep it in condition for such use. and 
 for no other purpose. Whatever limitation or abridgment of the 
 advantages which the abutting lot is entitled to from the street 
 may be caused by the exercise of the public right, the owner of 
 the lot must submit to. If putting it to proper street uses causes 
 annoying noises to be made in front of his lot, or the air to be 
 filled with dust and smoke, so as to darken his premises, or pol- 
 lute the air that passes from the street upon them, he has no legal 
 cause of complaint. His right to complain arises when such in- 
 terruptions to the enjoyment of his private right are caused by a 
 perversion of the street to uses for which it was not intended ; by 
 employing it for uses which the public right does not justify. The 
 court in Adams v. Chicago, B. & N. R. Co., swpra, reach the con-
 
 86 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 elusion that constructing and operating an ordinary commercial rail- 
 road on a street is a perversion of the street to a use for which it was 
 not intended ; one not justified by the public right, and which 
 the State or municipality, as representing such right, cannot, as 
 against private rights, authorize, — the decisions to this effect, it is 
 said, are full and explicit. It has always been held in Minnesota, 
 contrary to the decisions in many of the States, that laying such a 
 railroad upon a public street or highway is the imposition of an 
 additional servitude upon it — an appropriation of it to a use for 
 which it was not intended.' 
 
 Many of the decisions that the lot owner can have no right of 
 action where railroads are permitted to use the street for commer- 
 cial purposes are by courts which hold that the use of a street for 
 an ordinary railroad is a legitimate street use — one that comes 
 within the uses and purposes for which streets are established. 
 Where that is the rule, inasmuch as the right or interest of the 
 abutting lot owner is subordinate and subject to the right to de- 
 vote the street to use for a railroad, as well as for any other proper 
 mode of street travel, of course no cause of action in favor of the 
 lot owner, whether he owns the fee of the street or not, could 
 grow out of the proper construction and operation of a railroad in 
 a street. For that reason the decisions of such courts can be of 
 no authority where a different rule upon the rightfulness of using 
 the street for such a purpose prevails. 
 
 The conclusions arrived at in Adams v. Chicago, B. <& JV. R. 
 Co., supra, are that the owner of a lot abutting on a public street 
 has, independent of the fee in the street, as appurtenant to his lot, 
 an easement in the street in front of his lot to the full width of 
 the street, for admission of light and air to his lot, which ease- 
 ment is subordinate only to the public right ; that depriving him 
 of or interfering with his enjoyment of the easement for any pub- 
 lic use not a proper street use is a taking of his property within 
 the meaning of the Constitution ; that appropriating a public 
 street to the construction and operation of an ordinary commercial 
 railroad upon it is not a proper street use ; that where, without 
 his consent and without comjiensation to him, such a railroad is 
 laid and operated along the portion of the street in front of his 
 ^Carliv, Stillwater Street B. & Trans. Co. 28 Minn. 373, and cases cited.
 
 Cliap. YI.] 8TKEET RAILROAD. — GRANT OF PRIVILEGE. 87 
 
 lot, SO as upon that part of the street to cause smoke, dust, cinders, 
 etc., which darken or polkite the air coming from that part of the 
 street upon his lot, he may recover whatever damages to his lot 
 are caused by so laying and operating such railroad on that part of 
 the street ; that the recovery should be limited to the damages 
 caused by operating the railroad in front of plaintilf's lot, and 
 ought not to include any that might have accrued from ojDcruting 
 it on other parts of the street. 
 
 b. Street Railroad.— Grant of Privilege. 
 
 "Where a private person or corporation, under an unlawful au- 
 thority conferred by municipal officers, constructs railroad tracks 
 across a street, thereby diverting travel and decreasing the value 
 of the property of a lot owner and taking away trade,- such owner 
 suffers such an injury as entitles him to maintain an injunction to 
 restrain the construction and oj)eration of the tracks as a public 
 nuisance.* The right to construct and operate a street railway is a 
 franchise which must have its source in the sovereign power. The 
 legislative power over the subject is also subject to the limita- 
 tion that the franchise must be granted for public and not private 
 purposes ; or at least public considerations must enter into every 
 valid grant of a right to appropriate a public street for railway 
 uses.* The corporate entity and its corporate franchises are dif- 
 ferent things ; the one is the being, the others are attributes and 
 possessions of the body.^ Where an ordinance of a city authorizes 
 a railway company to construct and operate a line of road within 
 the limits of the city, and prescribes the conditions imposed upon 
 the company, and no right to alter the terms uj)on which the com- 
 pany accepted was reserved, the city has no power, by a subse- 
 quent ordinance, without the consent of the company, to impose 
 upon it other and additional obligations.* A municipality havino- 
 control over its streets may prescribe the motive power to be used 
 in propelling street cars thereon, and when it prescribes one kind 
 
 ^Glcessner v. Aniieuser-Busch Brew. Asso. 100 Mo. 508. 
 * Fanning v. Osborne, 102 N. Y. 441, 3 Cent. Kep. 455. 
 ^State V. Boston, 0. & M. R. Go. 25 Vt. 433; 1 Kyd, Corp. 15. 
 ^People V. Chicago West Division R. Co. 118 111. 113, 5 West. Rep. 517.
 
 88 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 jf power no other can be used.' All grants of privileges by the 
 State are subject to its right to prescribe the conditions upon 
 ■which they shall be enjoyed.* Excessive privileges cannot pass by 
 grant of a franchise except by express words.* Such grants should 
 be strictly construed.* Any ambiguity in grants, or excessive 
 privileges, must operate against the grantee.^ And if doubts arise 
 in construing the language of a charter, they will always be re- 
 solved in favor of the State and the public* To ascertain the 
 meaning of a grant, resort may be had to the practical interpreta- 
 tion given by the subsequent uniform acts and conduct of the 
 parties in relation thereto.'' Whatever may have been the rule at 
 common law, under the State Constitutions and Statutes the pow- 
 ers of corporations are expressly limited to those specified in the 
 statute or conferred by their charters.* Where authority given 
 for the use. of streets is specific, precise and guardedly limited, 
 and the streets and extent of use are specifically defined, and im- 
 mediately after a general clause is inserted, such general clause 
 gives no additional authority.' A permission to occupy public 
 streets with a railroad track should plainly appear, and not be left 
 to be derived by doubtful implication from the generality of lan- 
 guage." The same power of the Legislature that exists over the 
 streets extends also as to allowing a right of way under the streets.'^ 
 Therefore, power to tunnel under the streets of a city may be 
 granted by legislative authority, and, as a sequence, the grant may 
 not only be by express words, but may arise by implication as in 
 
 ^Indianapolis Cable St. R. Co. v. Citizens St. B. Co. (Ind. June 19, 1890) 
 
 8 L. R. A. 539, and note. 
 
 ^Delaware, L. & W. R. Co. v. Central Stock Yard & T. Co. 43 N. J. Eq. 71^ 
 
 9 Cent. Rep. Ill; Oshkosh v. Mihcaukee & L. W. R. Co. 74 Wis. 534. 
 ^Citizens St. B. Co. v. Jones, 34 Fed. Rep. 579. 
 
 *Omaha Horse R. Co. v. Cable Tramicay Co. 30 Fed. Rep. 324. 
 
 '^New York v. Starin, 106 N. Y. 1; Qilmore v. JJtica, 55 Hun, 514. 
 
 * Victoria Co. v. Victoria Bridge Co. 68 Tex. 62; Langdon v. NeiD York, 93 N. 
 
 Y. 129; New York v. Broadway & S. A. R. Co. 97 N. Y. 275. 
 ''Neio York v. Starin, 106 N. Y. 1, 8 Cent. Rep. 54; Beople v. Mauran, 5 
 
 Denio, 389; Goodyear v. Cary, 4 Blatchf. 271; Smith v. Beople, 47 N. Y. 
 
 339; Eaf<ton v. Bickersgill, 55 N. Y. 315; Enapp v. Warner, 57 N. Y. 668; 
 
 Boicer v. Athens, 99 N. Y. 601, 1 Cent. Rep. 181; New York v. Hart, 95 
 
 K Y. 451. 
 ^Re McQraw v. Cornell University, 45 Hun, 354. 
 » ^''Chicago, D. & V. B. Co. v. Chicago, 121 111. 176, 9 West. Rep. 493. 
 ^^BaUimore & B. R. Co. v. Reaney, 42 Md. 117; 1 Rorer, Railroads, 501.
 
 Chap. YI.] STREET RAILROAD. — GRANT OF PillVILEGE. 89* 
 
 other cases.' Where such right is claimed by virtue, also, of a 
 concurrent ordinance of the city, the company is bound on its part 
 by, and must conform to, the terms of the ordinance.' Coi'pora- 
 tions are confined to the exercise of powers granted, and such in- 
 cidental powers as are necessary to carry into effect those specially 
 conferred.' A corporation has power to do only such acts as its 
 charter, considered in relation to the general law, authorizes it to 
 do.* AVhatever rights, beyond those belonging to a natural per- 
 son, are claimed by a corporation must either be found in its 
 charter or must arise from contract.' The construction of the 
 road must be done in conformity with the plans and estimates 
 submitted to the jury who assessed the right of way ; and if de- 
 parted from to the damage of the land holder, injunction may be 
 allowed to restrain it or the remedy by action for damages may be 
 resorted to. The assessment of right of way will not cover such 
 outside injury.' If, in making such construction, there be injury 
 inflicted on others, by reason of unskillf ulness or negligence, the 
 company is liable.'' The taking of private property for public usa 
 is in derogation of private right — is hostile to the ordinary control 
 of the citizen over his estate; and therefore statutes authorizing it 
 are not to be extended in their operation by mere implication.* 
 
 ^Baltimore & P. R. Co. v. Reaney, 42 Md. 117, 131; Springfield v. Con- 
 necticut R. R. Co. 4 Cush. 63; Enfield Toll Bridge Co. v. Hartford & N. 
 II. R. Co. 17 Conn. 40, 54; New York, H. & N. R. Co. v. Boston, II. 
 &E. R. Co. 36 Conn. 196; Bridgeport v. Neio York & N. H. R. Co. 36 
 Conn. 255; White River Tump. Co. v. Vermont C. R. Co. 21 Vt. 590; 
 Central City Horse R. Co. v. Ft. Clark Horse R. Co. 81 111. 523; Contra. 
 Costa C. M. R. Co. v. Moss, 23 Cal. 323; Rex v. Pease, 4 Barn. & Ad. 30. 
 
 ^Baltimore & P. R. Co. v. Reaney, 42 Md. 117; Baltimore & C. V. R. E. Co. 
 V. Duke, 129 Pa. 422. 
 
 ^Chicago Gaslight <& Coke Co. v. People's Gaslight & Coke Co. 121 111. 530, 11 
 West. Rep. 69. 
 
 *Oulf, C. & S. F. R. Co. V. Moj-ris, 67 Tex. 692; Ft. Worth Street R. Co. v. 
 Rosedale Street R. Co. 68 Tex. 169. 
 
 ^Shelbyville R. Co. v. Louisville, G. <& L. R. Go. 83 Ky. 541. 
 
 ^Jacksonville & S. R. Go. v. Kidder, 21 111. 131; St. Louis, J. & C. R. Co. v. 
 Mitchell, 47 111. 165; Peoria & R. I. R. Co. v. Bii-kett, 62 111. 332. 
 
 ''Baltimore & P. R. Co. v. Reaney, 42 Md. 117, 130; Leader v. Moxon, 3 Wil- 
 son, 461; Jones v. Bird, 5 Barn. & Aid. 837; Lawrence v. Great Northern- 
 R. Co. 16 Q. B. 643; Manley v. St. Helen's Canal & R. Co. 2 Hurl. &N. 
 840; 1 Rorer, Railroads, 501. 
 
 •Rensselaer & 8. R. Co. v. Davis, 43 N. Y. 137, 146; New York & H. R. Co. 
 V, Kip, 46 N. Y. 546; Re Deansville Cemetery Asso. 66 IST. Y. 509, 5 Hun, 
 482; Wilson v. Lynn, 119 Mass. 174; Brayton v. Fall River, 124 Mass. 95;
 
 90 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 c Steam Street Railroad— Excluded. 
 
 Tlie clear weight of authority still seems inclined to regard the 
 employment of steam as a motive power upon the streets of a city 
 as an appropriation of the street to a new servitude. In New 
 York and some other States the construction of a steam railroad 
 between distant points in a highway is treated as devoting it 
 to a new and distinct use, for which the adjoining owner is en- 
 titled to compensation, as for an additional servitude, even with- 
 out proof of special damage.' 
 
 In Williams v. New York C. R. Co., 16 N. T. 97, the principle 
 was established that a dedication of land for street purposes did 
 not authorize the Legislature to permit the construction of a steam 
 railroad thereon without compensation to the owner of the fee,* 
 and he is entitled to damages for a depreciation of the market or 
 rental value of his premises, and for annoyances to his business or 
 to his family occupation.' A railroad company chartered to run 
 its train through a street cannot make the dwelling-houses unin- 
 habitable by the operation of its road, without offering compensa- 
 tion;* nor will the license of the board of supervisors justify the 
 <5reation of a nuisance.' One man cannot with impunity invade 
 
 Holt V. Somermlle, 127 Mass. 408; Central R. Co. v. Pennsylvania R. Co. 31 
 N. J. Eq. 475; Nat. Docks R. Co. v. Central R. Co. 32 N. J. Eq. 755; 
 Missimppi Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206; Prather v. 
 Jeffersonville, M. & I. R. Co. 52 Ind. 36. But see Leisse v. St. Louis & 
 I. M. R. Co. 2 Mo. App. 105; 1 Rorer, Railroads, 298. 
 
 Fletcher v. Auburn & S. R. Co. 25 Wend. 462; Adams v. Chicago, B. & N. 
 R. Co. 39 Minn. 286, 1 L. R. A. 493; Imlay v. Union Branch R. Co. 26 
 Conn. 249, 68 Am. Dec. 392; Williams v. New York C. R. Co. 16 N. Y. 
 97, 18 Barb. 222; Ruttles v. Covington (Ky. Jan. 31, 1889) 10 Ky. L. Rep. 
 766; Henderson v. New York C. R. Co. 78 N. Y. 423, 17 Hun, 344; Southern 
 Pac. R. Co. V. Reed, 41 Cal. 256; Washington Cemetery v. Prospect Park 
 & C. I. R.Co. 68 N. Y. 591; Tlieobold v. Louisville, N. 0. & T. R. Co. 66 
 Miss. 279, 4 L. R. A. 735; Murdockv. Prospect Park & C. L R.Co. 73 N.Y. 
 579; Cray v. St. Paul & P. R. Co. 13 Minn. 315; i?e New York C. & H. R. 
 R. Co. 15 Hun, 63; Starr v. Camden & A. R. Co. 24 N. J. L. 592; Re Pros- 
 pect Park & C. I. R. Co. 16 Hun, 261; Terre Haute & I. R. Co. v. Scott, 
 74 Ind. 29; Lafayette, M. & B. R. Co. v. Murdock, 68 Ind. 137; Ford v. 
 Chicago & N. R. Co. 14 Wis. 616; Cape Girardeau & B. M. & O. Road 
 Co. V. Renfroe, 58 Mo. 265 ; Indianapolis, B. & W. R. Co. v. Hartley, 67 
 111. 439, 16 Am. Rep. 624; South Carolina R. Co. v. Steiner, 44 Ga."546; 
 Jones V. Keith, 37 Tex. 394. 
 
 ^Fanning v. Osborne, 102 N. Y. 441, 3 Cent. Rep. 455. 
 
 ^Floi'ida Southern R. Co. v. Brown, 23 Fla. 104. 
 
 *Pennsylvania R. Co. v. Angel, 41 N. J. Eq. 316, 5 Cent. Rep. 86. 
 
 ^Sullivan v. Royer, 72 Cal. 248; Baltimore d C. V. R. E. Co. v. Duke, 129 
 Pa. 422.
 
 Chap. YI.] STEAM STREET KAILROAD EXCLUDED. 91 
 
 the premises of another by a nuisance, because the damages may 
 be inappreciable. The law allows the recovery of nominal dam- 
 ages, at least, as evidence of plaintiff's right.' The presumption 
 in regard to a street, in the absence of evidence, is that the puljlic 
 has acquired an easement only for highway uses in the land em- 
 braced in the street.' The property or easement which a city has 
 in the streets or public places is not private property, in the sense 
 that it cannot be taken for a public use, except upon just compen- 
 sation ; but it is public' The easement acquired by the public is 
 limited to the right to travel over the same.* The right which a 
 municipality acquires in a street is limited by public necessity, and 
 cannot extend beyond its use for street purposes." When this 
 paramount power of condemnation has been exercised, the use of 
 the property or easement taken can only be exercised in accord- 
 ance with and for the purposes for which it has been taken.* One 
 whose property abuts on a highway is entitled to enjoy the bene- 
 fits of it, whether any land was originally taken from him or not.^ 
 All uses inconsistent with the public necessity remain in the abut- 
 ting owner.* The presumption, in the absence of evidence, is 
 that the fee of land embraced in a street remains in the oriofinal 
 owner,' and that the public has acquired an easement only for 
 highway uses. An abutter owning the fee of half the street has 
 such property therein as will prevent the taking of any part of it 
 by the laying of a railroad track thereon, and the operation of a 
 steam railroad, without compensation." The right to compensa- 
 tion given in Iowa by Code, § 46-i, to abutters on a street occupied 
 by a railroad company, is not an interest in the street, but simply 
 a claim to damages, which may be waived or assigned in parol." 
 
 ^Humphrey v. Irvin (Pa. Oct. 4, 1886) 4 Cent. Rep. 687. 
 
 ^Fanning v. Osborne, 102 N. Y. 441, 3 Cent. Rep. 453; Robert v. Sadley, 104 
 
 N. Y. 229, 6 Cent. Rep. 208. 
 ^Portland & W. V. R. Go. v. Portland, 14 Or. 188. 
 4 Winchester v. Capron, 63 N. H. 605, 2 New Eng. Rep. 543. 
 ^Lahr v. Metropolitan Elevated R. Co. 104 N. Y, 268, 6 Cent. Rep. 375. 
 ^Lance's App. 55 Pa. 25. 
 "iLahr v. Metropolitan Elevated R. Co. 104 N. Y. 268, 6 Cent. Rep. 375; Up- 
 
 Tiam V. Worcester, 113 Mass. 97. 
 ^Lahr V. Metropolitan Elevated R. Co. 104 N. Y. 268, 6 Cent. Rep. 375, 
 ^Fanning v. Osborne, 102 N. Y. 441, 3 Cent. Rep. 453. 
 ^^Florida Southern R. Co. v. Brown, 23 Fla. 104. 
 "iVa« V. Des Moines N. W. R. Co. 72 Iowa, 249; Jolly v, Bes Moines K W. 
 
 R. Co. Id, 759,
 
 92 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 d. Steam Street Railroad— Permitted. 
 
 But there are courts that do not limit the original appropria- 
 tion, and exclude the use of steam as a motor. It is held in 
 some of the States that the occupation by a railroad, under leg- 
 islative authority, of the street of a city in its ordinary use as- 
 a means of travel and transportation, is not an abandonment 
 or perversion of the street from its original purposes. Time, the 
 unerring test in the utilization of new discoveries, has demonstrated 
 that long and connecting lines of railroad greatly facilitate and 
 cheapen transportation. To construct and operate such lines it i& 
 necessary that cities shall be traversed by them. The city is nec- 
 essarily traversed by and through its streets ; and by laying a 
 railroad track through or along a public street, the use and com- 
 fort of the latter as a highway must be somewhat impaired. When 
 this is done under proper authority, it is but the assertion of so 
 much of the sovereign power and discretion, by which one right or 
 easement is abridged in its enjoyment that the public may have 
 another deemed to be of greater value.' 
 
 Under the law in West Virginia, a railroad company, with the 
 assent of the municipal authorities, may construct and operate its 
 railroad along a public street of a city in a cut or excavation below 
 the common level of the remaining portion of the street, in such 
 manner as will appropriate a portion of the street to the exclusive 
 use of the railroad company, provided such excavation does not 
 occupy the entire street or such considerable portion thereof as 
 would substantially prevent the use of the street by the general 
 public, and the abutting lot owners on the street so occupied by 
 the railroad company, whether they own the fee in the ground 
 covered by the street or not, will not be entitled to enjoin the 
 railroad company from making such excavation and constructing 
 its road along the street in a careful and proper manner, unless in 
 doing so the injury to the lot owners will be such as will entirely 
 destroy the value of their property and therefore be equivalent to 
 a virtual taking of it by the railroad company.' 
 
 ^Perry v. New Orleans, M. & G. B. Co. 55 Ala. 413, 424; Porter v. North Mo. 
 
 B. Co. 33 Mo. 128; Baltimore & G. V. B. E. Co. v. Duke, 129 Pa. 422. 
 ^Arbem v. Wheeling <& H. B. Co. 33 W. Va. 1, 5 L. R. A. 371. See also Be 
 
 Philadelphia & T. B. Co. 6 Whart. 25; Slruthers v. Dunkirk, W. & P. B. 
 
 Co. 87 Pa. 286; Morris & E. B. Co. v, Newark, 10 N. J. Eq. 352; Ped- 
 
 dicord v. Baltimore, C. & E. M. P. B. Co. 34 Md. 463.
 
 Ohap. VI.] FEE OF STREET IN THE PUBLIC. RELEASE. 93 
 
 e- Fee of Street in the PllTjUc— Release. 
 
 It has been denied by some of the courts that the owner of prop- 
 ■ertj in a city where the fee of the streets is in the public can 
 assert a claim for dama<^es for the excavation of an adjacent street 
 by a railroad in making a crossing for its track, under a hceuse 
 properly granted by the city, and when the work is done in a care- 
 ful and skillful manner.' 
 
 A distinction has been taken, however, between horse and steam 
 railways," and it is said that a change in the public use from one 
 kind of public use to another, which is not a material change, will 
 not operate as an abandonment of the prior use or as an addition- 
 al servitude,^ and that one owning the fee cannot recover for an 
 added burden where the cars are drawn by horses.* But this 
 distinction is denied in New York, and while the lot owner whose 
 limit is the street line cannot recover for interference with any 
 easement in the street, from running, with any motive power, cars 
 thereon, at grade,^ not denying access to his premises," the owner 
 of the fee in the street may do so.' 
 
 So it is said that if the owner of lots fronting on a street in a 
 ■city does not own the street in front of his lots, subject to a pub- 
 lic easement, he cannot maintain an action for damages for build- 
 ing a railroad on the street, except for special damages by reason 
 
 ^Fram v. Sioux City & P. B. Go. 55 Iowa, 107. 
 
 ^Atty-Qen. v. Metropolitan B. Co. 125 Mass. 515, 28 Am. Rep. 264; Orand 
 
 Bapids& I. B. Co. v. Heinel, 38 Mich. 62; Stanley v. Davenport, 54 Iowa, 
 
 463; 1 Rorer, Railroads, 504. 
 ^Brainard v. Missisquoi B. Co. 48 Vt. 107; Malonev. Toledo, 28 Ohio St. 643. 
 
 But see People v. Lawrence, 54 Barb. 589; Mills, Em. Dom. § 57. 
 *Bandall v. Jacksonville St. B. Co. 19 Fla. 409, 17 Am. & Eag. R. R. Cas. 184; 
 
 Hiss V. Baltimore & H. P. B. Go. 53 Md. 242; Hinchman v. Patterson H. B. 
 
 Co. 17 N. J. Eq. 75; Hobart v. Milwaulcee B. Co. 27 Wis. 194; Texas & P. 
 
 B. Co. V. Bosedak St. B. Co. 64 Tex. 80, 22 Am. & Eng. R. R. Cas. 160, 
 
 Eichels v. Evansville St. B. Co. 78 Ind. 261; Bio Grande B. Co. v. Brotcns- 
 
 mlle, 45 Tex. 88; Cincinnati & S. G. Ave. St. B. Co. v. Cumminsville, 14 
 
 Ohio St. 523; Severy v. Central Pac. B. Co. 51 Gal. 194; Elliott v. Fair 
 
 Haven, 32 Conn. 579. 
 ^Drake v. Hudson B. B. Go. 7 Barb. 508; Bellinger v. Forty-Second St. & O. 
 
 St. F. B. Co. 50 N. Y. 206; Washington Cemetery v. Prospect Park & G. 
 
 I. B. Co. 68 N. Y. 591, 593. 
 'Mahady v. Bushwick B. Go. 91 N. Y. 149. See also Fulton v. Short Boute 
 
 B. Trans. Go. 85 Ky. 640. 
 ^Fobes V. Borne, W. & 0. B. Co. 121 N, Y. 505, 8 L. R. A. 453; Drucker v. 
 
 Manhattan B. Go. 106 N. Y. 157, 8 Cent. Rep. 66; Craig v. Bochaster City 
 
 & B. B. Go. 39 N. Y. 404.
 
 94 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 of a nuisance caused by the obstruction of a public street ;' and 
 that where a raih-oad track is on a public street, owners of prop- 
 erty in its vicinity, to sustain a complaint for constructing and 
 maintaining it, must establish that it is a public nuisance, and that 
 they have sustained special damage." 
 
 The possession of the public roads by a railway company is a 
 matter between the road authorities and the company ; and the 
 right cannot be questioned in an action of ejectment by the owner 
 of the land over which the public road has been established.* And 
 where the owner of a lot fronting on a street has released to a 
 railroad company the right of way for the use of one track in the 
 street to the center of the street, he cannot maintain an injunction 
 to prohibit the company from constructing a switch by laying a 
 track on the projecting ends of the ties on which the rails of the 
 main track have been laid, unless it appears that the laying of the 
 proposed switch will in some way impose a burden on the plain- 
 tiff's soil, or that it in some way obstructs or impairs the plaintiff's 
 use of the street.* 
 
 f. Electric Motors. 
 
 But the use of modern improved means of travel and the rapid 
 conveyance of persons and the swift and accurate transmission of 
 intelligence are visibly changing the current of public sentiment, 
 and highways appropriated hereafter will certainly be considered 
 as charged with new uses in the public interest. The use of horse 
 cars has been generally regarded by the courts as not involving a 
 new or added servitude by their introduction on the streets, and 
 as furnishing no ground in themselves for compensation to pro- 
 prietors of abutting property, although they may have title to the 
 street subject to the original easement of the public therein. Even 
 now courts which exclude steam engines, as practically appropri- 
 ating the entire roadway, are prepared to accept steam motors in 
 
 ^Severy v. Central Pac. R. Co. 51 Cal. 194; Grand Rapids & I. R. Co. v. 
 
 Heisel, 38 Mich. 62; Greene v. Ifew York C. & H. R. R. Co. 13 Abb. N. 
 
 C 124- Houston & T. C. R. Co. v. Odum, 53 Tex. 343, 2 Am. & Eng. R. 
 
 R. Cas. 503; Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224; Bolts v. Mo. 
 
 Pac. R. Co. 11 Mo. App. 589; Rio Grande R. Co. v. Brownsville, 45 Tex. 
 
 88;' Elizahethtown & P. R. Co. v. Thompson, 79 Ky. 52. 
 ^Black V. Philadelphia & R. R. Co. 58 Pa. 249. 
 ^Edwardsmlle R. Co. v. Sawyer, 92 111. 377. 
 *Indianapolis &St. L. R. Co. v. Calvert, 110 Ind. 555, 9 West. Rep. 238.
 
 Chap. YI.] TELEGRAPH AND TELEPHONE POLES. 95- 
 
 noiseless work.' Electricity is accepted in public opinion as 
 a proper motor for the streets, and it has recently been determined 
 that a charter permitting a street railway to use horses or other 
 power will permit the use of electricity as a motive power ;' and 
 that, where authority is given to use electricity as a motive power, 
 by any system of application approved as suitable, the placing of 
 poles in the streets will not be held prohibited by a clause in the 
 charter prohibiting the incumbering of any part of the streets not 
 occupied by its tracks.' And so the New York Statute authorizing 
 a turnpike company to operate a street railroad, and to use " the 
 power of horses, animals or any mechanical or other power, or the 
 combination of them, which such company might choose to em- 
 ploy, except the force of steam," is construed as embracing elec- 
 tricity as a motive power,* and the Kapid Transit Act (Laws 1875^ 
 chap. 606) authorizes the organization of companies to construct 
 street railways on the surface, to be operated by any power other 
 than animal.' 
 
 A statute conferring on a street railway company the right to 
 adopt a new motive power in place of animal power does not vio- 
 late a constitutional provision that no law shall authorize " the 
 construction or operation of a street railroad" without the consent 
 of the local authorities having control of the portion of the high- 
 way upon which it is proposed to operate the railway, although no- 
 provision is made for obtaining such consent.* 
 
 g. Telegraph and Telephone Poles. 
 
 The injury to the private individual who asks an injunction 
 must not be trivial, or such as may be compensated in damao-es 
 but must be serious, affecting the substance and value of the- 
 plaintiff's estate.'' He must show some special injury over and 
 above the common injury to the general public* 
 
 ^Newell V, Minneapolis, L. <& M. R. Go. 35 Minn. 113, 59 Am. Rep. 303. 
 
 « ^Taggart v. Newport St. R. Co. 16 R. I. , 7 L. R. A. 205. 
 
 ^Hudson River Teleph. (Jo. v. Waternliet Tump. <& R. Co. 56 Hun, 67. 
 ^JSTeio York Cable R. Co. v. New York, 104 N. Y. 1, 6 Cent. Rep. 56. 
 *Re Petition TJiird Ave. R. Co. (N. Y. June 17, 1890) 9 L. R. A. 12-1. 
 ■'Talbott V. King, 32 W. Va. 6. 
 ^Olcessner v. Anheuser-Busch Brew. Asso. 100 Mo. 508.
 
 "96 IMPOSED DUTIES, PEKSONAL. [Part I. 
 
 One having the right of possession of property may sue for nuis- 
 ance resulting from unlawful use of a public street upon which it 
 abuts/ as for the unlawful occupation of the street bj a railroad, 
 or maintaining telephone poles and wires by a telegraph com- 
 pany." 
 
 In Reg. v. United Kingdom Teleg. Co., 3 Fost. & F. T32, it is 
 decided that a permanent obstruction, such as the posts of a 
 telegraph, erected on a highway and placed there without lawful 
 authority, whereby the way is rendered less commodious to the 
 public than before, is an unlawful act and amounts to a nuisance ; 
 and the circumstance that the posts were not placed upon the re- 
 paired and metalled part of the highway, nor upon an artificially 
 formed foot path, but on the waste on each side of the way, makes 
 no difference, even though a jury might be of opinion that a suf- 
 ficient space for the public use remained unobstructed. 
 
 There is a decided disagreement among the courts upon the 
 question whether the erection and maintaining by a corporation 
 of telephone poles and wires in a city street, the fee of which is 
 in the adjacent proprietor, is an infringement of the property 
 rights of the owner of the land, the proper authorities having 
 consented to such a use of the street. Is such a case within the 
 purpose for which city streets must be deemed to have been 
 established, so that the individual proprietor is not entitled to 
 further compensation ? Or is this a new appropriation of the land 
 not embraced in the original dedication or condemnation for the 
 purposes of a public street ? That a municipal corporation has 
 the general power to regulate the use of streets, and that this 
 power extends to new uses as they spring into existence from time 
 to time, as well as to uses common and known at the time of the 
 dedication or grant of the use to the municipal corporation aud to the 
 public, is admitted.' And it may perhaps be conceded that the erec- 
 tion and maintenance of telegraph and telephone poles, if deemed 
 advisable by the municipal authorities, is one of the new uses, and 
 
 ^Hopkins v. Baltimore & P. B. Go. 6 Mackey, 311, 13 Cent. Rep. 398. 
 ^Pennsylvania R. Co. v. Mifih, 115 Pa. 514, 4 Cent. Rep. 276; Willis v. Erie 
 
 Teleg. & Tcleph. Co. 37 Minn. 347, decided by a divided court. 
 ^Ferrenbach v. Turner, 86 Mo. 416.
 
 Chap. VI.] TELEGKAPII AND TELEPHONE POLES. 97 
 
 such use is a proper use of the street," and yet the lot owner may 
 •be entitled to compensation, as for a use not coutemphited in the 
 original proceedings creating the highway. In denial of the right 
 to claim compensation, the Massachusetts court, Avith the dissent 
 ■of two judges out of seven constituting the court, is found.' And 
 the Missouri court reaches the same conclusion with a dissent of 
 two of the judges in a court of live members.' The Supreme 
 Court of Minnesota was equally divided upon the question.'' The 
 New York Superior Court held, the fee of the streets being in 
 the city, it was so vested in it in trust, for limited purposes, and 
 the lot owner could recover for this new use.* The supreme 
 court of New York at special term has held that the lot owner 
 was entitled to compensation,' and the United States Circuit 
 Court for the Northern District of Illinois, the Supreme 
 Court of that State and the Court of Chancery of New Jersey 
 reach the same result.' Decisions have been made that a tele- 
 phone or telegraph company cannot invade the right of way of a 
 railroad,* nor may a railroad place poles upon its right of way for 
 ■commercial use without additional compensation," though it may 
 for its own use.'° How. far the latter rulings may determine the 
 ■question of the rights of lot owners on streets is not clear, as a 
 •condemnation for railroad purposes does not include a street 
 easement, although the last may be held by some courts to include 
 the use by railroads. 
 
 ^Julia Bldg. Asso. v. Bell Teleph. Co. 88 IMo. 258, 5 West. Rep. 357; HocMt 
 V. State, 105 Ind. 250, 2 West. Rep. 764; State v. Nebraska Teleph. Co. 17 
 Neb. 126; Belcher Sugar Ref. Co. v. St. Louis Grain E'ev. Co. 82 Mo. 121; 
 State V. Bell Teleph. Co. 36 Ohio St. 296; Muiin v. Illinois, 94 U. S. 113, 
 24 L. ed. 77; Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155, 24 L. ed. 94; 
 Peik V. Chicago & N. W. R. Co. 94 U. S. 164, 24 L. ed. 97. 
 
 '^Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7. 
 
 ^Julia Bldg. Asso. v. Bell Teleph. Co. 88 Mo. 258, 5 West. Rep. 357. 
 
 '^Willis V. Erie Teleg. & Teleph. Co. 37 Minn. 347. 
 
 ^Metropolitan Teleph. & Teleg. Co. v. Colwell Lead Co. 67 How. Pr. 365. 
 
 ■^Dusenbury v. Mutual Teleg. Co. 11 Abb. N. C. 440. 
 
 "> Atlantic & P. Teleg. Co. v. Chicago, R. L & P. R. Co. 6 Biss. 158; Board 
 of Trade Teleg. Co. v. Barnett, 107 111. 507, 47 Am. Rep. 453; Broome v. 
 New York & N. J. Teleph. Co. 42 N. J. Eq. 141, 5 Cent. Rep. 874. 
 
 ^SoutMcestern R. Co. v. Southern & A. Teleg. Co. 46 Ga. 43; Atlantic & P. 
 Teleg. Co. v. Chicago, R. L & P. R. Co. 6 Biss. 158. 
 
 ^Western U. Teleg. Co. v. Rich, 19 Kan. 517, 1~ Am. Rep. 159; American 
 Teleph. & Teleg. Co. v. Pearce, 71 Md. 535, 7 L. II. A. 200. 
 
 ^''American Teleph. & Teleg. Co. v. Pearce, 71 Md. 535, 7 L. R. A. 200. 
 7
 
 98 IMPOSED DUTIES, PERSONAL. [Part L 
 
 h. Drains and Electric, Gas and Water Con- 
 ductors. 
 
 "Where water pipes had, without consent of the owner of the 
 soil, been laid in the bed of a highway, an injunction to restrain 
 the continuance of the nuisance was granted.' 
 
 But an injunction to compel the removal of a building erected 
 upon land designated upon a plat as a street, but which did not 
 appear to have been accepted by the public or used as a highway ,^ 
 was refused." 
 
 There is a clear distinction between the use of streets for drains,, 
 sewers and for gas and water pipes, and for the conducting of 
 electric wires under ground, and the establishment of telegraph, 
 and telephone lines above ground within the limit of the high- 
 way. When a highway is laid out, it may be said in general 
 terms that the whole beneficial use of the soil is temporarily 
 taken from the owner and appropriated to the public use; and or- 
 dinarily the laying of underground pipes in such a manner as to- 
 cause no injury to the adjoining land does not deprive the owner 
 of the fee of any use which he could otherwise have made of the 
 soil. Ordinarily, therefore, he cannot be deemed to suffer any 
 legal injury from the laying of underground pipes. And in fact 
 sewers and drains and cable inclosures are built more directly hj 
 public oificers and usually are of direct benefit to the abutting 
 estates as well as to the streets themselves. Gas, water and tele- 
 graph or telephone pipes are likely to be of direct service in 
 furtherance of the purpose for which streets are laid out, aiding 
 public travel and prompt communication and the convenience and. 
 safety both of the public and the lot owner. Providing prompt 
 means of notifying the police and fire departments of riot, rob- 
 bery or fire is within the reasonable use of the street. It is cer- 
 tain such use for the transmission of messages is within their use; 
 as post roads.' 
 
 ^Ooodson V. Richardson, L. R. 9 Ch. 221. 
 
 ^Pavonia Land Asso. v. Feenfer (N. J. .Jan. 3, 1887) 5 Cent. Rep. 640. 
 
 'Western U. Teleg. Co. v. New York, 38 Fed. Rep. 552, 3 L. R. A. 449.
 
 CHAPTER YII. 
 
 RIGHTS OF PUBLIC IN HIGHWAY. 
 
 Sec. 13. Negligence Creating Nuisance in Higlnoay. 
 
 a. Permitting Street Obstruction for Building Purposes. 
 
 b. Permitting Use for Business Purposes and Pleasure. 
 
 c. Oiuner of Property on Street must not Create Nuisance in 
 
 Higlnoay. 
 
 d. Erecting Buildings and MaTcing them Secure. 
 
 e. Building Rendered Insecure by Act of Stranger, 
 
 f. Snow, Ice or Material Falling from Roof. — Repairing 
 
 Building. 
 
 g. Ajjerture in Sideiualh. 
 
 Section 13.— JYegUgeitcG Creating JVuisance in 
 
 Highway. 
 a. Fermitting Street Ohstruction for Building 
 
 Purposes. 
 
 The Legislatures have in most States expressly enacted that the 
 cities shall not have power to authorize the placing or continuing 
 of any encroachments or obstructions upon any street or sidewalk, 
 except the temporary occupation thereof during the erection or 
 repair of a building on a lot opposite the highway.' 
 
 A municipal corporation may lawfully permit its streets to be 
 temporarily used for building purposes. Such a corporation is 
 not an insurer of the safety of its streets.' The general charter 
 powers of a corporation, and the right to exercise special powers, 
 are impliedly reserved in every grant of property to private in- 
 dividuals, and in every license to use or obstruct the streets." A 
 license by legislative Act, legalizing obstructions in the streets of a 
 municipality which otherwise would be nuisances, is dependent on 
 the legislative will, and may be withdrawn,* 
 
 ^Colien y.Mw York, 113 N. Y. 537; Consolidation Act, § 86, subd. 4 pp. 
 
 25, 26; People v. New York, 59 How. Pr. 277; Ely v. ''Campbell, 59 How. 
 
 Pr. 333; Lavery v. Uannigcm, 20 Jones & S. 463; Bobbins v. Chicago, 71 
 
 U. S. 4 Wall. 657, 18 L. ed. 427. 
 *Warsaw v. Dunlap, 112 Ind. 576; Ring v. Cohoes, 77 N.Y. 83. 
 * * Winter v. Montgomery, 83 Ala. 589.
 
 100 IMPOSED DUTIES, PERSONAL, [Part I. 
 
 The duties and liabilities imposed by its charter for the safety 
 of the public cannot be abrogated or dispensed with by an ordi- 
 nance of the city council; and reason and public policy supple- 
 ment the law in holding cities responsible for the neglect or omis- 
 sion of due diligence in the discharge of their charter duties. In 
 McCoull V. Manchester (Ya. Dec. 13, 188S), 2 L. K A. 691, the 
 defendant city pleaded its own ordinance, allowing building ma- 
 terials to be put in the streets, and setting forth that the pile of 
 sand which had caused the injury was being used at the time b}'' 
 the contractor for building purposes; and the court instructed the 
 jury that the existence of the ordinance was a complete and ab- 
 solute defense to the city itself, and relieved it from all amenabili- 
 ty to the law, which declares it to be its duty to keep its streets 
 and highways in safe condition for the use of the public, and, 
 where necessary, to have a light or barrier, or other signal, to warn 
 travelers of the temporary and necessary danger in the street. 
 This was held error on appeal.' 
 
 The fact that a city has given to the land owner a license to use 
 a street for the deposit of building material does not suspend the 
 .duty of the city to exercise reasonable care to keep it in safe con- 
 dition.^ Scaffolding suspended from the eaves of a house is not 
 necessarily a nuisance. It is not prohibited by an ordinance pro- 
 hibiting hanging goods, etc., in front of a building.' Materials 
 for building may be placed in the street, provided it be done in 
 the most convenient manner.* 
 
 b. Permuting Use for Business Purposes and 
 
 Pleasure. 
 
 The lease of a street for private uses is void.^ When a city, 
 without the pretense of authority and in direct violation of a 
 statute, assumes to grant to a private individual the right to 
 
 'See Nohle v. Riclimond, 31 Gratt. 271; Sawyer v. Corse, 17 Gratt. 230; Rich- 
 mond V. Courtney, 32 Gratt. 798; Orme v. Richmond, 79 Va. 86; Qordon 
 V. Richmond, 83 Va. 436; Covington v. Bryant, 7 Bush, 248. 
 
 ^Grant v. Stillwater, 35 Mina. 242; Brusso v. Buffalo, 90 N. Y. 679. 
 
 ^Ilexamer v. Webb, 101 N. Y. 377, 2 Cent. Rep. 439. 
 
 * Chicago v. Bobbins, 67 U. S. 2 Black, 418, 17 L. ed. 298. 
 
 ^Marine Ins. Co. v. St. Louis, 2. M. <& S. B. Co. 41 Fed. Rep. 643.
 
 Chap. YII.] PERMITTING USE FOR BUSINESS AND PLEASURE, 101 
 
 obstruct the public highway while in the transaction of his 
 private business, and, for such privilege, takes compensation, 
 it must be regarded as itself maintaining a nuisance so long as the 
 obstruction is continued by reason of and under such license; and 
 it must be liable for all damages wdiich may naturally result to a 
 third party who is injured in his person or his property by reason 
 or in consequence of the placing of such obstruction in the high- 
 way.^ 
 
 One doing business on a street in a populous city has a right to 
 obstruct the sidewalk temporarily for the necessities of his busi- 
 ness, if exercised in a reasonable manner and so as not to unnec- 
 essarily obstruct and incumber it, and he is under no obligation to 
 furnish pedestrians a safe passage around the obstruction,^ and he 
 becomes liable only for his negligence in the use of the privilege.' 
 
 Where a merchant obstructs a sidewalk for an hour or more at 
 a time, amounting in all to four or five hours a day, by a bridge made 
 of skids, from his building, to convey goods to and from his trucks, 
 it constitutes a public nuisance.* But the use of a bridge made 
 of skids to load or unload a single truck, by placing it from the 
 stoop of the building across the sidewalk to such truck, not ob- 
 structing the street for any considerable time, is not a nuisance,' 
 and one doing business on a city street may obstruct the sidewalk 
 temporarily for the necessities of business, as by using skids to 
 load merchandise.' The necessity required to justify the use of 
 a sidewalk by placing skids thereover in front of a store, for the 
 purpose of unloading heavy barrels from a wagon, need only be 
 reasonable.'' 
 
 The occupancy, for drainage purposes, of an alley dedicated by 
 parol without any restrictions as to its use, by putting under it 
 connections w4th city sewers, is a proper use of it.* 
 
 ^Cohenv. New York, 113 N. Y. 533, 4 L. R. A. 406; Warsaw v. Dunlap, 113 
 
 Ind. 579. 
 ^SeelFefe/i v. Wilson, 101 N. Y. 254, 2 Cent. Rep. 749, and/w7te?w v. RoMnson, 
 
 66 Wis. 638, 1 L. R. A. 178, and notes. 
 ^Kelly V. Doody, 116 N. Y. 575; Moynihan v. Whidden, 143 Mass. 287, 3 
 
 New Eng. Rep. 363; Samyn v. McClosky, 2 Ohio St. 536. 
 4 ^Callanan v. Oilman, 107 N. Y. 360, 9 Cent. Rep. 900. 
 ^WeUTi V. Wilson, 101 N. Y. 254, Callanan v. Oilman, 107 N. Y. 360. 
 ''Jochem v. Robinson, 66 Wis. 638, 1 L. R. A. 178; Rex v. Jones, 3 Camp. 230. 
 *McElhone's App. 118 Pa. 618; Sndth v. Simmons, 103 Pa. 33.
 
 102 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 The entire street is for the use of the public; and an unauthor- 
 ized use of part of it for a market is a puhhc nuisance.' 
 
 Subject to such rights as are vested in the owners, a city may 
 give permission for proper purposes for the use of the pubhc 
 streets, and the authorities can properly allow them to be used for 
 pleasure traveling, either by vehicles drawn by horses or sleds 
 drawn by children, or for coasting." 
 
 c. Owner of Property on Street must not Create 
 JStuisance in Highway. 
 
 The owner of property abutting on a street is liable if he in any 
 way creates or causes a public nuisance in the highway adjacent 
 to his estate by means of which a traveler, while using due care 
 for his own protection and safety, suffers an injury to his jDcrson; 
 and it makes no difference how or in what manner the nuisance 
 is created, whether it is by removing snow from his own premises 
 and piling it up in the public street, in such an accumulated mass 
 as to essentially interfere with its use and enjoyment,' and impede 
 public travel, or in any other way or by any other means what- 
 ever. The same consequences would follow if he erected his 
 building upon the highway,* or constructed it so that it would 
 necessarily become a public nuisance, or if, having lawfully and 
 properly erected and placed it upon his own land, he suffer and 
 allow it to fall into such waste and decay that in the end it would 
 necessarily become a nuisance and thereby cause an unlawful 
 obstruction to public travel." In short, in all these cases he would 
 be liable generally to prosecution by indictment. He would be 
 liable at common law or by statute in most of the States. But as 
 the owner and occupant of land and buildings abutting upon the 
 public street, he is not responsible to individuals for injuries re- 
 sulting from defects not caused by him, and want of repair in the 
 sidewalk, or by means of snow and ice accumulated by natural 
 causes therein, although by ordinances of the city it is made the 
 
 ^McDonald v. Newark, 43 N. J. Eq. 136; St. John v. New York, 3 Bosw. 483. 
 *ArtTier v. Cohoes, 56 Hun, 36; Jackson v. Castle, 80 Me. 119. 
 ^Pnme v. Twenty-Third St. E. Co. 1 Abb. N. C. 63; Bing v. Co/toes, 77N.Y. 83. 
 *Com. V. Moorehead, 118 Pa. 344; Langan v. Atchison, 35 Kan. 318. 
 ^Wilkinson v. Detroit S. & 8. Works, 73 Mich. 405; Tucker v. Illinois C. B. 
 Co. (La. Jan. 29, 1890) 7 So. Rep. 124.
 
 Ohap. YII.] ERECTING BUILDINGS. 103 
 
 duty of abutters, under prescribed penalties, to keep the sidewalk 
 -adjoining their estates in good repair, and seasonably to remove 
 all snow and ice therefrom. Such ordinances are valid and work 
 which is enforced under them relieves, to the extent of its cost or 
 value, the city from charges to which it would otherwise be nec- 
 essarily subjected in the discharge of its municipal duties.' 
 
 <3. Erecting Buildings and Making Them Secure. 
 
 It is a matter of common knowledge and experience that when 
 a man is breaking and handling bricks for the construction of a 
 wall some of the material may fall, although the workman in 
 handling and laying it is in the exercise of ordinary care. The 
 cause of the fall in such a case may be accidental, but it is an acci- 
 dent which the builder of the wall, in view of the danger to life 
 and limb, will be bound to contemplate and provide against by 
 safeguards or barriers, so that the traveler may not be exposed to 
 iniurv. Not to do so would be an " omission to do somethinof 
 which a reasonable man, guided by those considerations which 
 ordinarily regulate the conduct of a man of affairs, would do ;'" 
 and therefore a person who is constructing a wall, abutting upon a 
 highway, and who fails to provide safeguards and barriers to pre- 
 vent injury to a passing traveler from the falling brick, may be 
 liable with the city for injuries received, although his servants are 
 not guilty of negligence in breaking and handling the bricks,' 
 
 It is the duty of proprietors of structures, erected along a high- 
 way, to exercise reasonable care to prevent their becoming unsafe 
 to passers-by. The presumption to a traveler of a street is not 
 that adjacent buildings are unsafe and liable to fall and that rea- 
 sonable care requires him to hurry on. He naturally supposes 
 otherwise ; and such supposition is in accord with the public duty 
 of proprietors of structures, along such a highway, to prevent 
 their becoming unsafe to passers-by. There are many instances in 
 
 ^Ooddard, Petitioner, 16 Pick. 504; Moore v. Gadsden, 93 N. Y. 12; Knupfle v. 
 
 Knickerbocker Ice Co. 84 N. Y. 488; Jansen v. Atchison, 16 Kan. 358; Ilee- 
 
 ney v. Sprague, 11 R. I. 456; Fiynn v. Canton Co. 40 Md. 312; Weller v. 
 
 McGormick, 47 N. J. L. 397. 
 ^BlythY. Birmingham Waterworks Co. 11 Exch. 781, 784; Samijn v. McCloa- 
 
 key, 2 Ohio St. 536; Lumparter v. Wallbaum, 45 III. 444. 
 ^Jager v. Adams, 123 ]^Iass. 26; Eehberg v. New York, 91 i^. Y. 137,
 
 104r IMPOSED DUTIES, PERSONAL. [Part I. 
 
 which it is not incompatible with the lawful use of a street to halt 
 while passing along.' Thus, the conduct of a child in pausing 
 only for a moment or two to gaze with childish curiosity at some 
 workmen shingling a roof would not bar the recovery for injury 
 suffered by a fence falling upon her.^ 
 
 It is the duty of the owner of a building under his owij control 
 and in his own occupation, as between himself and the public, to 
 keep it in such safe condition that travelers on the highway shall 
 not suffer injury.' If a building is constructed by the owner or 
 through his directions so as to be insecure and unsafe, and of such 
 inherent weakness as to fall without external or internal forces 
 acting upon it other than the ordinary forces to which it would be 
 subject in the locality and from the business carried on in it, it is a 
 nuisance ; and the owner cannot be relieved from liability for in- 
 juries thereby caused to a person lawfully in the public highway 
 adjoining, on the ground that it was built by an independent con- 
 tractor.* In Sessengut v. Posey, 67 Ind.408, the owner of prem- 
 ises was held liable for falling walls, although they were in 
 possession, at the time, of a contractor. 
 
 Where an injury occurs from the owner permitting walls which 
 had been weakened by fire to remain unprotected, he is liable 
 for the injury.^ The owner of a burnt building is liable for dam- 
 ages caused by the falling of one of its walls which had been neg- 
 ligently left standing.* 
 
 e. Building Rendered Insecure hy Act of 
 Stranger. 
 
 It is undoubtedly true that when a stranger does a negligent or 
 unlawful act on the land or building of another, and in doing that 
 act occasions injury to a third person, the owner of the land or 
 building is not liable ; but when the wrongful act, as in Gray v. 
 
 1 "^Hussey v. Ryan, 64 Md. 426; Chicago v. Keefe, 114 111. 222. 
 
 ^Oray v. Boston Gas Light Co. 114 Mass. 149; Khron v. Brock, 144 Mass. 516, 
 
 4 New Eng. Rep. 426; Baltimore & 0. R. Co. v. Rose, 65 Md. 485, 3 Cent. 
 
 Rep. 724; Tucker v. Illinois C. R. Co. (La. Jan. 29, 1890)7 So. Rep. 124. 
 * Wilkinson v. Detroit Steel <& Spring Works, 73 Mich. 405. 
 ''Glover X. Mersman, 4 Mo. App. 90; Reg. v. Watts, 1 Salk. 357; Church of 
 
 the Ascension v. Buckhart, 3 Hill, 193. 
 ^Anderson v. East, 117 Ind. 126, 2 L. R. A. 712, note.
 
 Chap. VII.] MATERIAL FALLING FKOM KOOF. 1U5- 
 
 Boston Gaslight Co.^ 114 Mass. 149, causes a chimney which was 
 adjacent to the highway to become unsafe and liable to fall by reasoa 
 of the strain of the telegraph wire, and this condition was continued 
 for a considerable period and existed at the time of the injury, the 
 defendant is liable. The owner of a building is bound, as between 
 himself and the public, to keep it in such proper and safe condi- 
 tion that travelers on the highway shall not suffer injury.' It is 
 therefore the duty of the owner to guard against danger to which 
 the public is exposed from anything likely to fall upon the side- 
 walk from the roof of a house, and he is liable for the consequences 
 of having neglected to do so, whether the unsafe condition was 
 caused by himself or another with his passive consent and knowl- 
 edge." Nor can the owner protect himself from liability because 
 he did not in fact know that the building was unsafe, if by any 
 act, knowingly permitted by him, such insecurity would naturally 
 follow. He is bound to exercise proper care required under the 
 circumstances of the case.' So as to a private hanging lamp, the 
 duty was declared absolute, where it overhung the pavement.* 
 
 f. Snow, Ice or Material Falling from Roof.— Re- 
 pairing Building. 
 
 Khron v. Brock, 144 Mass. 516, 4 New Eng. Kep. 424, was an 
 action to recover damages for personal injuries occasioned by a. 
 piece of zinc which fell or was blown by the wind upon the plain- 
 tiff from the roof of the defendant's house. The court left it to- 
 the jury to determine whether the plaintiff's injury was caused by 
 the unsafe and improper condition of plaintiff's building, and 
 whether at the time the plaintiff was lawfully on the street or- 
 sidewalk — which it was claimed was obstructed during the pro- 
 cess of the building, to prevent its use by the public — in the 
 exercise of due care, and informed the jury that the duty of an 
 
 ^Milford V. Holbrook, 9 Allen, 17; SJiipley v. Fifty Asuo. 101 Mass. 251, and 
 cases cited; Hadley v. Taylor, L. R. 1 C. P. 53; Kearney v. London, B. & 
 8. a B. Go. L. K. 6 Q. B. 760; Tucker v. Illinois C. B. Co. (La. Jan. 29, 
 1890) 7 So. Rep. 124. 
 
 ^Coupland v. HardingTiam, 3 Camp. 398. 
 
 ^Khron v. Brock, 144 Mass. 516, 4 New Eng. Rep. 426; Oray v. Boston Gas 
 Light Co. 114 Mass. 149; Van Winkle v. Am. 8. B. Ins. Co. (N. J. Feb. 
 25, 1890) 19 Atl. Rep. 472. 
 
 *Tarry v. Ashton, L. R. 1 Q. B. Div. 314.
 
 106 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 owner to keep his building in sucli a condition that a lawful occu- 
 pant of adjacent property will not be injured bj it, does not 
 create against him a liability for an accident caused by the wrong- 
 ful interference by a third person, or for an inevitable accident ; 
 that is, for one produced by such a cause as a superior and unan- 
 ticipated natural force, like a stroke of lightning, or a tornado of 
 such violence as could not reasonably be expected ; but it does 
 leave him liable for all accidents produced by the unsafe condition 
 of the house in connection with winds or storms ordinarily inci- 
 dent to our climate. On appeal in affirming the judgment it was 
 said : " It is the duty of an owner of a building under his own 
 oontrol and in his own occupation, as between himself and the 
 public, to keep it in such safe condition that travelers on the high- 
 way shall not suffer injury." Gray v. Boston Gas Light Co., 114 
 Mass. 149, and cases therein cited, were referred to as supporting 
 this rule. But he is under no obligation to keep the unfinished 
 building safe for persons not lawfully entering it.^ 
 
 Where the wall of defendant's building was on the line of the 
 highway, but the portion of the roof projecting over the high- 
 way was a part of the roof, as the building was constructed and 
 maintained, if injury resulted therefrom, it was incidental to the 
 construction and use, by the defendants, of their property. Nor 
 would such use of the property be less properly described as care- 
 less and negligent, because it was also distinctly wrongful." 
 
 One who violates a duty owed to others, or who commits a tor- 
 tious or wrongfully negligent act, is liable for all the consequences 
 which ensue in the usual and natural course of events, though 
 they are produced immediately by intervening causes, if the latter 
 were set in motion by the original wrongful act.' 
 
 That a horse, struck by falling ice or snow, would start, and 
 would thus be liable to injure a person standing near or upon the 
 wao-on, and who was engaged in loading or unloading, is so en- 
 tirely according to the natural or usual sequence of events that it 
 
 ^Roulston V. Clai% 3 E. D. Smith, 36G; CaHtle v. Parlcer, 18 L. T. N. S. 367; 
 Willy V. Mulledy, 78 N. Y. 310; Campbells. Lunsford, 83 Ala. 512. 
 
 ^Smethurst v. Barton Square Independent Congregational CAwrcA, 148 Mass. 231. 
 
 ^FlemiJig v. Beck, 48 Pa. 309, 313; Milwaukee & St. P. B. Co. v. Kellogg, 94 
 U S 469, 24 L. ed. 256; Forney v. Ooldsmacher, 75 Mo. 113; West Ma- 
 honey Ticp. V. Watson, 116 Pa. 344; Pittsburgh, C. & St. L. B. Co. v. 
 Conn, 104 Ind. 64, 1 West. Rep. 901.
 
 Chap. VII.] MATEKIAL FALLING FKOM ROOF. 107 
 
 cannot be necessary to submit the question whetlier one occurrence 
 mi<^ht probably be expected to follow the other.' 
 
 It is well settled that one who violates a duty owed to others, or 
 who commits a tortious or wrongfully negligent act, is lialile, not 
 only for those injuries which are the direct and immediate conse- 
 quences of his act, but for such consequential injuries as, according 
 to common experience, are likely to, and in fact do, result from 
 his act." 
 
 • The owner of a lot abutting on a public street in a city has no 
 right to erect a building on it with a roof so constructed that ice 
 and snow collecting on it will naturally and probably fall upon the 
 adjoining sidewalk below, thereby exposing foot passengers to 
 bodily injury ; and if he does so construct it, he is liable, without 
 other proof of negligence, to a person injured by the falling ice 
 or snow while traveling on the sidewalk with due care.^ But if 
 permitted by ordinance and free from negligence, and the dis- 
 charge pipe is properly constructed, he may convey water to the 
 pavement without liability for ice forming therefrom.* 
 
 If one gives his servant general directions to throw the snow 
 from the roof of his house, which is situate upon a public street, 
 enjoining no caution and suggesting no mode of doing it, to pre- 
 vent injury, nor placing the servant under any restriction against 
 projecting it on the walk, he is responsible for any negligence on 
 the part of the servant, or of the one whom he employs, no mat- 
 ter how carefully his roof is constructed.^ 
 
 Where a horse is frightened by a moving street car and runs 
 away, and the driver is injured by a collision with a dangerous 
 obstruction in the street, the obstruction is the proximate cause ;' 
 but where one walking on the street slipped on account of ice, 
 and, falling, struck her head on a projecting cellar door, the al- 
 
 ^Smethurst v. Barton Square Independent Congregational Church, 148 j\Iass 
 261, 2 L. R. A. 695; Lowery v. Manhattan B. Co. 99 N. Y. 158. 
 
 ^McDonald v. SneHing, 14 Allen, 290; Metallic Compression Casting Co. v. 
 Fitchhurg R. Co. 109 Mass. 277; Berry v. Flilner, 118 IVIass. 131; Welling- 
 ton V. Downer E. 0. Co. 104 Mass. 64; Ei-Jigott v. New York, 96 N.Y. 204. 
 
 ^Hannem v. Pence, 40 Minn. 127; Shipley v. Fifty Asso. 106 Mass. 194. 
 
 *Kirhyv. Boylston Market Asso. 14 Gray, 249; Wemlick v. McCotter, 87 N. 
 Y. 122. 
 
 ■^Althorfy. Wolfe, 22 N. Y. 355. 
 
 * Campbell V. Stillwater, 33 Minn. 308; Middlestadt v. Morrison ("Wis March 
 18, 1890) 44 N. W. Rep. 1103.
 
 ]08 IMPOSED DUTIES, PERSONAL. [Part L 
 
 leged negligence in maintaining such door did not contribute to 
 the injury/ 
 
 Where a horse took fright at a hole in a culvert, and by the 
 conduct of the horse the driver was thrown from the wagon into 
 the ditch, the hole must be considered as the remote cause, its 
 connection with the accident being casual and not causal." E'or 
 ■would a land slide passing over one's premises, injuring adjoining 
 grounds, render him liable/ 
 
 g. Aperture in Sidewalh. 
 
 The permanent maintenance of an aperture in the sidewalk of 
 a public street by the owners and occupants of an adjoining 
 building with whose interior it communicates by an underground 
 passage, to be used by them occasionally and reasonably for the 
 introduction of articles through the same into such building, does 
 not necessarily become a nuisance unless left in such condition as 
 to become dangerous to travelers on the highway, where the 
 right to such maintenance and use has been granted by the owner 
 of the land, to be used as a highway and as an easement therein 
 in such manner as to be paramount to the easement of the public 
 therein to use it as a highway. Or the easement may be granted 
 by the State or its representatives, and be therefore lawful. The 
 ownership of such an easement takes away from such aperture 
 the character of a nuisance, so far as such character makes its 
 author or maintainer an absolute guarantor for the safety of all 
 travelers on the highway,* and leaves him simply bound to use 
 proper precaution to protect them from injury by it.' In the 
 absence, however, of proof of the authority for making it, or of 
 
 ^Hunter v. Wanamaker (Pa. Jan. 25, 1886) 2 Cent. Rep. 70. 
 
 ^Spauldingy.Winslow, 74 Me. 533; O'Brien v. McOlinchy, 68 Me. 557. 
 
 ^Brown v. McAllister, 39 Cal. 573. 
 
 *Irvin V.Wood, 4 Robt. 138; Calder v. Smalley, 66 Iowa. 219; Congrevev. 
 Smith 18 N. Y. 79; Gridley v. Bloomington. 68 111. 50; Portland v. Bich- 
 ardson, 54 Me. 46; Qrinnell v. Earner, L. R. 10 C. P. 658. 
 
 ^Clifford V. Dam, 81 N. Y. 52; Jochem v. Robinson, 66 Wis. 638; Sexton v. 
 Zett, 44 N. Y. 430; Bush v. Johnston, 23 Pa. 209; Temperance Hall Asso. 
 V Oiles, 33 N. J. L. 260; Ottumwav. Parks, 43 Iowa, 119; Omaha Hotel 
 Asso. V.' Walter, 23 Neb. 280; Landru v. Lund. 33 Minn. 538; Mclntire 
 V. Eoberts, 149 Mass. 450.
 
 Chap, yil.] APERTURE IN SIDEWALK. 109 
 
 the time or aiitlior of the construction of such an existing aperture 
 in the sidewalk, or of the persons by whom, the manner in which 
 and the period during which it had been used, it has been said 
 that the owners of the adjoining building, if liable at all, are 
 prima facie liable as absolute insurers of travelers from injury by 
 such aperture, and are not exempt from liability by the exercise 
 ■of any degree of care, where such injury has occurred.' But in 
 McCarthy v. Syracuses 46 N. Y. 194, it was held that when the 
 lot owner's line runs to the centre of the street, he has the right 
 to excavate under the surface of the street for basement purposes 
 ■or any use not inconsistent with the public way, and in Illinois in 
 Gridley v. BlooTnington^ 68 111. 50, while the absolute right is not 
 admitted, yet it is said a license will be presumed to have been 
 granted on the condition that the person using it shall exercise more 
 than ordinary care and expedition in the prosecution of the work.^ 
 As the advantage is entirely with the lot owner and the risk on 
 the public the duty should be imperative. Everyone who main- 
 tains or uses or receives profits from the use of a dangerous construc- 
 tion or excavation in a public highway, whether such maintenance 
 and use be legal or not, is bound to use the utmost vigilance and care 
 to protect those traveling on such highway against injury from it. 
 While an aperture in a highway has a sufficient covering and pro- 
 tection over it to prevent accidents its creation and existence 
 become and remain simply a trespass on the soil over which the 
 highway passes, for which its maker or sustainer is liable to the 
 owner. The ownership of such an easement would take awav 
 from the maker of such an aperture the character of a trespasser, 
 rendering him liable absolutely for the safety of all travelers, and 
 merely impose upon him the duty of using due diligence to pro- 
 tect them. It is not necessarily a nuisance because it exists in the 
 soil over which the highway passes; otherwise excavations 
 spanned by bridges, or the cavities of culverts or drains, would be 
 equally nuisances. It becomes a technical nuisance only when it 
 is so insufficiently covered and guarded that a traveler in the exer- 
 
 ^Hvglies v. Orange Co. M. Asso. 56 Hun, 396; Calderr. Smalley, 66 Iowa, 219; 
 Congreve v. Smith, 18 N. Y. 79; Gridley v. Bloomington, 68 111. 50; Port- 
 land V. Richardson, 54 Me. 46; GrinnellY. Earner, L. R. 10 C. P. 658. 
 i *Jennings v. VanSchaick, 108 N. Y. 530; Adams v. Fletcher, 17 11. I. — .
 
 110 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 cise of the public easement of passing over the highway is injured 
 by falling into it or otherwise.* 
 
 In Wolf V. Kilpatrick, 101 N. Y. 140, 2 Cent. Eep. 81, the 
 defendants were the owners of premises which had vaults for the 
 storage of coal extending under the sidewalk. The plaintiff was 
 injured by a defect in the stone supporting the cover of the open- 
 ing, which arose while such premises were in the occupation of 
 one McPherson and others, who were tenants having entire con- 
 trol of the premises. The defect was not one of original construc- 
 tion, but occurred through the act and interference of third 
 persons engaged in building the elevated railway, and who broke 
 the stone supporting the iron cover so that it turned under plain- 
 tiff's weight and occasioned the injury. It was not shown at 
 what time, prior to the accident, the defendants became owners. 
 The building and the vault were constructed by McPherson, and 
 if, at the time, the appellants were owners and responsible for the 
 work actually done, it is still established that the vaults were built 
 under a permit from the city and in accordance with that license. 
 The coal-hole and its cover were safely and properly constructed 
 and in the usual and permitted manner. The case is not, there- 
 fore, within the doctrine of Clifford v. Dam, 81 IST. Y. 52 ; 
 Anderson v, Dickie, 1 Robt. 238; Dygert v. ScJienck, 23 Wend. 
 MO, and Congreve v. Morgan, 18 N. Y. 84, and kindred authorities. 
 
 In Clifford v. Dam no permission or license from the munici- 
 pality, to make the excavation was either pleaded or proved, and 
 the construction of the vaults was an unauthorized wrong and a 
 nuisance, for the consequences of which the owner was responsible 
 irrespective of the question of negligence. There was the same 
 lack of special authority in most of the other cases referred to. 
 
 !Nor is the case one in which the owner or landlord has let the 
 premises when in a defective and dangerous condition,'' for the 
 proof establishes no such ground of liability. The evidence does 
 
 ^Bond V. Smith, 44 Han, 219; Clifford v. Bam, 12 Jones & S. 391, 81 TST. Y. 
 52; Jennings v. Van Schaick, 108 N. Y. 530; Leigib v. Westerveit, 2 ])uer, 
 618, 623; Bellinger v. Mw York 0. R. Co. 23 N. Y. 42; Selden, v. Dela- 
 ware &H. Canal Co. 29 N. Y. 634. 642; Iricin v. Folder, 5 Robt. 482; 
 Barnes V. Ward, 9 C. B. 392; Beck v. Carter, 68 N. Y. 283; Craves v. 
 Thomas, 95 Ind. 364; Homan v. Stanley, 66 Pa. 464; Uadley v. Taylor, 
 L. R. 1 C. P. 53; Sanders v. Reister, 1 Dak. 151; Stratton v. Staples, 59 
 Me. 94; Fisher v. Thirkell, 21 Mich. 20; Weller v. McCormick (N.Y. June 
 9, 1890) 8 L. R. A. 798. 
 
 ^Davenport v. Ruckman, 37 N. Y. 568.
 
 Chap. VII.] APERTUKE IN SIDEWALK. Ill 
 
 not disclose the precise legal relation existing between the occu- 
 pants and owners. The former were tenants of some kind, 
 although it does not appear that any rent was reserved or paid ta 
 the owners, or that the latter were ever in possession at all. On 
 the contrary, McPherson testified that from the time he built the 
 houses, which was in 1857, to the time of the accident, he had 
 the care and control of the premises both as owner and occupant. 
 So that the recovery must stand, if at all, upon the sole ground 
 . that an owner who has constructed vaults under the sidewalk, 
 lawfully and with due prudence and care, and transferred posses- 
 sion of the premises, if he ever had it, to third persons, without 
 covenant on his part to repair, is liable for a defect in the vault 
 covering which afterwards occurs throngh the interference of a 
 stranger, although he may have had neither notice nor knowledge 
 of the defect. 
 
 The court below went so far in the case as to charge that : " If 
 the plaintiff sustained injury by reason of the defective condition 
 of said coal-hole and without contributory negligence, then said 
 defendants Kilpatrick are liable in damages," — to which there was 
 an exception. 
 
 The court was asked to charge that "notice of the alleged 
 condition of the coal-hole must have been given to the Kilpatricks 
 before they could be held liable as owners, when the possession 
 was in McPherson;" and that " if McPherson was in the control 
 and care of said premises, and deriving all the benefit therefrom, 
 he alone is liable to the plaintiff." These requests were refused, 
 and the appellants excepted. 
 
 The basis on which the case was sent to the jury was still more 
 clearly developed in the course of the charge. After stating the 
 liability of the city as founded upon negligence, and involving 
 notice, actual or constructive, of the alleged defect, the court 
 added : " The law is a little more severe with respect to the 
 owners of the premises for whose benefit this hole in the sidewalk 
 has been authorized. It holds them to a stricter liability ; a party 
 injured by falling through any coal-hole in the sidewalk is not 
 bound in the case of the owner of the premises to show tliat the 
 owner had notice that the hole was out of repair. It a])pears 
 according to the current of decisions that the owner of the prem-
 
 "113 IMPOSED DUTIES, PERSONAL. [Part L 
 
 ises is bound to see that the coal-hole and the cover over it afford 
 just as safe a passage to the wayfarer as any other portion of the 
 sidewalk. Therefore, the question with respect to these defend- 
 ants who are the owners of the property' is simply how much 
 they should be required to pay the plaintiff." 
 
 The doctrine of the trial court was thus made extremely plain. 
 Tt went upon the ground that the defect in the vault stone was a 
 nuisance for which the vault owner was responsible, though out 
 of possession and control, without the least knowledge of the fact, 
 and when the defect was produced by the interference and mis- 
 conduct of strangers. 
 
 It may be that the condition of the coal-hole in the sidewalk 
 became a nuisance, while McPherson was in possession, and after 
 the stone was broken.' But if so the court of appeals declares 
 that the party responsible can only be the person M^ho either cre- 
 ates the nuisance or suffers it to continue. The owners did not 
 •create it ; that was the wrongful act of strangers. How can it be 
 :said, it is asked, that they suffered it to continue and so failed in 
 their duty if they had no knowledge, actual or constructive, of the 
 defect, and were out of possession and control? That can only 
 be true on the theory that every owner of rented property in 
 New York is bound to watch the sidewalks and coal-holes in front 
 -of his premises and protect them against unauthorized trespasses, 
 and is bound to know when such trespass is committed. There 
 are no cases which go so far as that. 
 
 Commenting upon Swords v. Edgar, 59 IST. T. 34, it is said that 
 the premises in that case were a pier upon which the public having 
 business were invited to go, and which became dilapidated, where- 
 by injury arose. That condition was denominated a nuisance, for 
 which, primarily, the lessee in the actual occupation was liable ; 
 and he was held to be so liable, independent of any covenant to 
 repair and solely by force of the occupancy. But it was also held 
 that the lessors were liable, and upon the ground that the pier 
 was unsafe when demised, and they took a rent for it in that con- 
 dition. The whole drift of the opinion shows that the landlord 
 out of possession is not responsible for an after-occurring nuisance, 
 unless in some manner he is in fault for its creation or continu- 
 ance. His bare ownership will not produce that result. 
 
 ^Swords V. Edgar, 59 N. Y. 34.
 
 Oliap. VII.] APERTURE IN SIDEWALK. 113 
 
 It was said in Cliffords. Dam, 81 N, Y. 52, that proof of author- 
 ity from the municipality to build the vault would mitigate the act 
 from an absolute nuisance to an act involving care in the con- 
 struction and maintenance. 
 
 In Clancy v. Byrne, 56 K Y. 133, it was held that if the 
 premises are in good repair wlien demised, but afterward become 
 ruinous and dangerous, the landlord is not responsible therefor 
 either to the occupant or the public, unless he has expressly 
 .agreed to repair or has renewed the lease after the need of repair 
 has shown itself; and in the recent case of Edwards v. I^ew York 
 (& H. R. R. Co., 98 N. Y. 248, the circumstances under which 
 the landlord may become liable are very fully considered, with 
 the declared result that " the responsibility of the landlord is the 
 ■same in all cases. If guilty of negligence or other delictum which 
 leads directly to the accident and wrong complained of, he is liable ; 
 if not so guilty, no liability attaches to him." And in Wolf v. 
 Kilpatrick, supra, it is said in conclusion that it is quite certain 
 that the plaintiff in this case was bound to establish some fault of 
 omission or commission on the part of the landlord leading to the 
 injury, and barely showing him to be owner is not enough. There 
 w\as no fault of commission. That is conceded. There could be no 
 fault of omission unless the landlord was bound to repair the 
 defect, had actual or constructive notice of the defect or was 
 bound at his peril to discover and remedy it. No such duty rested 
 upon him. It was the tenant's duty to repair the stone ; it was 
 his neglect which left it unsafe, and the landlord was not shown 
 to be in any respect in fault. The charge made him liable barely 
 from the fact of ownership, and was erroneous. 
 
 An owner of city property, who constructs and maintains in 
 a sidewalk in front of his property a scuttle-hole covered in 
 such a way as to endanger the safety of persons in the proper 
 use of the walk, is liable to a person injured thereby whether the 
 structure is made and maintained by the authority of the city or 
 not.' But the ground of liability is negligence in the construction 
 
 ^Calderv. Smalley, 66 Iowa, 219; Com. v. Boston, 97 Mass. 555; Congrcvev. 
 Morgan, 18 N. Y. 84. The liability is based upon the negligence of the 
 lot owner in using the sidewalk, or in permitting obstructions thereon, 
 or upon an obligation, by contract or otlierwise, resting upon iiim to keep 
 the highway in repair. Rowdl v. Williams, 29 Iowa, 210; OUumwa v. 
 8
 
 114 IMPOSED DUTIES, PERSONAL, [Part L 
 
 or covering, or repair as required by law, as was held in Colder v. 
 Smalley, QQ Iowa, 219, where it was also held that one who^ 
 without authority of the city or negligently with such authority^ 
 constructs a scuttle-hole in his sidewalk cannot escape liability to 
 one injured thereby on the ground that the lessee of the property 
 agreed to keep the hole safely covered, and evidence of such 
 agreement is immaterial. 
 
 Where an excavation is made in a sidewalk alongside of the lot 
 for the purpose of constructing an area by the side of a building 
 to be erected, it is the duty of the owner, as the work necessarily 
 constitutes an obstruction or defect in the street dangerous in its 
 use unless securely guarded, to see that proper protection against 
 injury to persons passing along the sidewalk is provided ; and 
 although the lot, at the time of an injury from such failure to 
 protect an excavation, is in the exclusive possession of a contractor, 
 who has complied with the stipulations of his contract, the owner 
 will be liable for injuries received/ 
 
 Where a cover to an opening in a public street is placed in the 
 pavement as part of it, for persons to tread upon, in front of the 
 premises of a person who uses it for his private convenience, he 
 must exercise extraordinary care and diligence, not only in making, 
 but in keeping, it safe and secure. A traveler is not bound to 
 
 Parks, 43 Iowa, 119; Chicago v. Bobbins, 67 U. S. 2 Black, 418, 17 L. ed. 
 298; Bobbins v. Chicago, 71 U. S. 4 Wall. 657, 18 L. ed. 427; Inhabitants 
 of Woburn v. Henshaw, 101 Mass. 193; Lowell v. Short, 4 Cusb. 275; 
 Lowell V. Spaulding, 4 Gush. 277; Inhabitants of Milford v. Holbrook, 9 
 Allen, 17; Brooklyn \. Brooklyn C. B. Co. 47 N. Y. 475; Troy v. Troy 
 & L. B. Co. 49 N. Y. 657; Gridley v. Bloomington, 68 111. 47; Duranty. 
 Palmer, 29 N. J. L. 544; Portland v. BicJiardson, 54 Me. 46; Lowell y. 
 Boston & L. B. Corp. 23 Pick. 24; Sloughton v. Porter, 13 Allen, 191. 
 But an ordinance of a city which provides that, in case a lot owner fail* 
 or refuses to make repairs of sidewalk as required, he is liable to a fine, 
 is but a method of enforcing the performance of the work in lieu of a 
 tax. It imposes no liability upon the owner for injuries because the 
 work is not done, but this responsibility rests only on the person or cor- 
 poration having the authority to order the work done. Keokuk v. Inde- 
 pendent List. 53 Iowa, 352; Kirby v. Boylston Market Asso. 14 Gray, 
 249; Flynn v. Canton Co. 40 Md. 312; Heeney v. Sprague, 11 R. I. 456; 
 Eustace v. Jahns, 38 Cal. 3; Jansen v. Atchison, 16 Kan. 358. 
 ^ Silvers V. Nerdlinger, 30 Ind. 53. See Bobbins v. Chicago, 71 U.S. 4 Wall. 657, 
 679, 18 L. ed. 427,. 432; Chicago v. Bobbins, 67 U. S. 2 Black, 418, 17 L. 
 ed. 298; Siorrs v. Iftica, 17 N. Y. 104; Herringtony. Lansingburgh, 110- 
 N. Y. 145; Edmundson v. Pittsburgh, M. & T. B. Co. Ill Pa. 316; 
 Cincinnati v. Stone, 5 Ohio St. 38; Oourdier v. Cormack, 2 E. D. Smith, 
 254; Palmer v. Lincoln, 5 Neb. 136; St. Paul v. Seilz, 3 Minn. 297? 
 Detroit v. Corey, 9 Mich. 165; Springfield v. Le Claire, 49 111. 476.
 
 Chap. VII.] APERTURE IN SIDEWALK. 115 
 
 exercise critical and extreme care before stepping upon it. He 
 has a right to assume that, not only the public, but private own- 
 ers, have performed their duty, unless there is something reason- 
 ably apparent to cause some apprehension of danger.^ 
 
 But to render a lot owner liable for the act of a plumber in open- 
 ing or making an excavation in a sidewalk, it must appear that in 
 doing so the plumber was the agent or servant of the lot owner^ 
 and that he was in his em|)loy and subject to his direction and 
 control." 
 
 ^ Wells V. Sibley (Sup. Ct. April 11, 1890) 31 N. Y. S. R. 40; Buck v. Btddle- 
 ford, 82 Me. 433; Dickson v. HoUister, 123 Pa. 421; Davenpoi-t v. Riick- 
 inan, 37 N. Y. 568; Oordon v. Richmond, 83 Va. 436; Howard County v. 
 Lerjg, 110 Ind. 479; Turner v. Newburgh, 109 N. Y. 301; McGuire v. 
 Spence, 91 N. Y. 303. 
 
 *Kelly V. Doody, 116 N. Y. 575.
 
 CHAPTER YIII. 
 
 IMPERILING SAFETY OF TRAVELERS. 
 
 Sec. 14. Negligence Causing Injury to Traveler. 
 
 a. Excavating in or near Higliivay. 
 
 b. Falling of Fence or Limbs of Trees. 
 
 c. Private Seiuerage. 
 
 d. Liahility for Injury to Traveler and Care Required from 
 
 Him. 
 
 Section l^.—JVegUgence Causing Injury to Traveler. 
 a. Excavating in or near Highway. 
 
 "Wliere an excavation is made near to but not substantially 
 adjoining a public highway, at common law no action lies against 
 the owner of the land by a person who has strayed off the highway 
 and fallen into such excavation.' 
 
 That a private injury received from a public nuisance is the sub- 
 ject matter of an action for damages, is a doctrine as old as any in 
 the common law, and when an excavation is made adjoining a 
 public highway so that a person walking upon it might, by making 
 a false step, or being affected with sudden giddiness, or, in the 
 case of a horse in a carriage-way, might, by a sudden starting of the 
 horse, be thrown into the excavation, it is reasonable that the per- 
 son making such excavation should be liable for the consequences; 
 but whe!i the excavation is made at some distance from the high- 
 way and the person falling into it would be a trespasser upon the 
 defendant's land before he reached it, the case is different. It is 
 hard to say where the liability is to stop. A man going off a road 
 on a dark night and losing his way may wander to any extent 
 and if the question be for the jury no one could tell whether the 
 person making the excavation was liable for the consequences of 
 his act upon his own land or not. The proper and true test of 
 liability is whether the excavation be substantially adjoining the 
 way ; and it would be very dangerous if it were otherwise — if, 
 
 ^HardcastU v. South Torkslure R. & R. D. Co. 4 Hurl. & N. 67.
 
 Chap. VIII.] EXCAVATING IN OR NEAR HIGHWAY. 117 
 
 in every case, it was left as a fact to the jury wlictlier the excava- 
 tion were sutKciently near to the highway to he dangerous.' 
 
 The early case of Blyth v. TopJiam^ Cro. Jac. 158, where it is 
 said that if A, being seised of a waste adjoining a higliway, digs 
 a pit ill the waste, within 3() feet of the way, and the mare of B 
 escapes into the w^aste and falls into the pit and is killed, yet B 
 shall not have an action against A, because the making of the pit 
 in the waste and not in the highway was no wrong to B, but it 
 was by default of B himself that his mare escaped into the waste, 
 has been qualified by subsequent cases, notably in Barnes v, Ward^ 
 9 C. B. 392, and in Iladley v. Taylor, L. K. 1 C. P. 53, which 
 hold that if the excavation is adjacent to the highway, or so near 
 thereto as to make the use of the highway unsafe or dangerous, 
 the person making it will be answerable to a traveler who, while 
 using ordinary care, falls into it and is injured, although the exca- 
 vation is wholly on the land of the defendant. In the last case, 
 Byles, t/., after referring to Barnes v. Ward, remarked : " It is 
 extremely difficult to draw the line between what is and what is 
 not such a proximity to the highway as to constitute an actionable 
 nuisance." 
 
 In Young Y. Harvey, 16 Ind. 314, the horse of the plaintiff, 
 wandering upon the streets and commons of a suburb of a city? 
 fell into an old well on the lot of the defendant. The abandoned 
 pit was near the line of a street. The horse was lawfully grazing 
 on the common and fell into it. In determining the liability of 
 the defendant the fact that the pit had been abandoned was con- 
 sidered with the known hazard in leaving it thus exposed, and the 
 duty of tlie land owner to guard his neighbors from danger of 
 such exposure. 
 
 In Graves v. Thomas, 95 Ind. 361, following the ruling in 
 Young v. Harvey, supra, it was held that the fact that for a long 
 period the public using the sidewalk had been permitted to use a 
 path diverging from the sidewalk and returning to it over a va- 
 cant lot on the north of defendant's lot, and over the defendant's 
 lot, the path, which was about 40 feet long, being upon higher 
 
 ^Hardcastle v. South TorksUre R. & R. D. Co. 4 Hurl. & N. 67. Blnks v. 
 S'juth Yorkshire R. & R. D. Co. 3 Best & S. 244, where the deceased fell 
 into a canal 22 feet or thereabouts from the footway, which was unpro- 
 tected, and was drowned, was decided upon the authority of the Case of 
 Hardcastle.
 
 118 IMPOSED DUTIES, PERSONAL. [Part 1. 
 
 ground than another path sometimes used, which ran along the 
 sidewalk proper, rendered the owner of the lot liable to one who, 
 using the path diverging from the sidewalk, fell into an unguarded 
 excavation for building, which had been made by the owner. Beck 
 V. Carter^ <o% N.Y. 283, 23 Am. Kep. 175, is cited as an authority. 
 In that case the defendant had for a long time allowed a portion 
 ot his lot adjoining the street to be used by the public as a high- 
 way. He made an excavation in his lot about ten feet from the 
 line of the street. The plaintiff while passing over the lot in the 
 dark fell into the excavation and was thereby injured. It was 
 held that the defendant was liable, and the court of appeals ap- 
 proved the charge, instructing the jury that it made no difference 
 whether the excavation was seven or nine or ten feet from the 
 established boundaries of the thoroughfare ; that if it was so situ- 
 ated that a person lawfully using the thoroughfare was liable to 
 fall into it, the defendant was liable. 
 
 In Jones v. Nichols, 46 Ark. 207, 55 Am. Rep. 575, the defend- 
 ant left open an unguarded excavation some distance from the 
 highway, and the plaintiff's cow, which had been turned out upon 
 the commons, fell into the excavation, and it was held that an 
 action would lie against defendant for his negligence. 
 
 The duty and liability of a person maintaining an open excava- 
 tion on his premises, near a highway, depends upon the dangerous 
 condition in reference to the public use of the highway in which 
 the excavation is left by him, rather than upon the exact location 
 and distance from the highway.' In substituting for the test 
 which had formerly prevailed in Massachusetts, as expressed in 
 Howland v. Vincent, 10 Met. 371, the new test, stated in Mist- 
 ier V. 0' Grady, 132 Mass. 139, that the defendant "had no 
 reason to suppose that any person would attempt to go where 
 the danger was, and that the plaintiff was not misled by any 
 act or word of the defendant, " that court would seem to rec- 
 ognize the duty as resting upon the defendant, and this recog- 
 nition would bring the Massachusetts rule in accord with the 
 Connecticut rule, as announced in Norwich v. Breed, 30 Conn. 
 547 ; Bech v. Carter, 6 Hun, 601, 68 N". Y. 281 ; Balti- 
 
 » Crogan v. Schiele, 53 Conn. 186, 1 New Eng. Rep. 305; Mistier v. O^Qrady, 
 182 Mass. 139.
 
 Cliap. VIII.] EXCAVATING IN OR NEAR HIGHWAY. 11{> 
 
 rnore cfc 0. R. Co. v. Boteler, 38 Md. 568, — which rule, more 
 fully stated in Norioich v. Breed., makes the defendant's liability 
 ■depend upon the dangerous condition in which the excavation 
 was left by the defendant, rather than upon its distance from 
 the street, — the dangerous character, rather than the exact loca- 
 tion, of the excavation. Whether the excavation could, with 
 a due regard to the rights of passengers on the street, be left un- 
 guarded, or could not, depends upon the question whether, being 
 unguarded, it endangers the travel or not; if it does not, no matter 
 how near it is to the line of way ; if it does, no matter how far 
 it is removed. This rule seems to be a reasonable one and is 
 not thought to be in serious conflict with the principle controlling 
 the cases of Hardcastle v. South Yorkshire, R. & R. D. Co., 4 
 Hurl. & N. 67, and Hounsell v. Smyth, 7 C. B. IST. S. 729. But 
 it has lately been held in Massachusetts that occupants of a build- 
 ing abutting on a street are not liable in damages for injuries to a 
 traveler accidentally precipitated into an elevator well on the 
 premises by being pushed by a crowd, and tripped by a lintel 
 only three inches raised from the sidewalk and which formed the 
 base of the opening of the well, which opening was designed for 
 communication with vehicles on the street.' It does not appear 
 in this case that the opening was not constructed so as to be closed 
 with doors, or a proper barrier, when the elevator was not in use. 
 The opening was but five or six feet wide, and necessarily nearly at 
 a right angle with the line of the sidewalk, and the width of the 
 wall of the building was about eighteen inches. It was impossible 
 that any traveler using due care in the daytime should mistake 
 the opening for a continuation of^ the sidewalk." The only 
 danger was that a person on the sidewalk might be pushed into 
 the opening as he might be pushed against the wall of the 
 building, or against or through a window or against a door. 
 The elevator, at the time of the accident, was in use for 
 carrying up the iron castings which were being unloaded from 
 the wagon which had been bacced up against the curbstone 
 of the sidewalk. The accident that happened was 07ie that could 
 not reasonably have been anticipated, unless the horse was vicious, 
 
 ^Mclntire v. Roberts, 149 Mass. 450, 4 L. R. A. 519. 
 "See Day v. ML Pleasant, 70 Iowa, 193.
 
 120 IMPOSED DUTIES, PERSONAL. [Part L 
 
 or there was negligence in managing him ; and it does not appear 
 that the horse belonged to the defendants, or that the persons who 
 were unloading the castings, or were in control of the horse, were 
 servants of the defendants. It is said of the liability of a city, in 
 Alger v. Lowell, 3 Allen, 402, 405, that " the place where the- 
 plaintiff fell was indeed outside the line of the street, but the de- 
 fect in the street which occasioned the injury was the want of 
 of a railing, if one was necessarj' at that place to make the street 
 safe and convenient for travelers in the use of ordinary care. 
 And the city would have an undoubted right to erect such a rail- 
 in "•, although it might obstruct the entrance to the passageway of 
 an abutter ; because no person has a right to an open access to his 
 land adjoining a street of such a character as to endanger persons 
 lawfully using the street for purposes of travel." 
 
 In Franklin v. Fish, 13 Allen, 211, it is said that, " when 
 highways are established, they are located by the public authori- 
 ties with exactness, and the easement of the public, which consists 
 of the right to make them safe and convenient for travelers, and 
 to use them for public travel, does not extend beyond the limits 
 
 of the location The right of adjoining proprietors to 
 
 erect structures upon their land up to the line of the highway is 
 exercised everywhere.'" 
 
 If this elevator opening rendered the sidewalk permanently 
 dangerous to travelers, it was recognized as undoubtedly the duty 
 of the City of Boston to put up a barrier, and if the defendant& 
 removed it they might be liable to travelers who were injured in 
 consequence of the removal of the barrier ; but, it was said, it 
 has not yet been decided in Massachusetts that at common law 
 abutters are liable to travelers for injuries received in consequence 
 of excavations made in their land outside the limits of a highway ;. 
 and Rowland v. Vincent, 10 Met. 371, was thought to be a strong- 
 er case for the plaintiff than Mclntire v. Roberts, 149 Mass. 450, 
 4 L. K. A. 519. On appeal in Mclntire v. Roberts it was argued 
 that Rowland v. Vincent is opposed to the weight of authority else- 
 where, and that a hole outside the limits of a highway, yet so 
 near to it as to make the highway unsafe for travelers, constitutes 
 a public nuisance, and that, if a person creates a public nuisance^ 
 1 See Mayo v. Spi'inri field, 136 Mass. 10.
 
 Chap. YIII.] EXCAVATING IN OK NEAR HIGHWAY. 121 
 
 he is liable to individuals for aiiy special damages suffered there- 
 from.' 
 
 But the court said that the occupier of a building, who negli- 
 gently permits a private way leading to it, which is under his 
 control, to be in an unsafe condition, by reason of an excavation 
 or embankment so near to it as to make traveling on it dangerous, 
 is liable for injuries received by any person who is lawfully using 
 the way with due care f but abutters on a public way have not 
 control of the way, nor do travelers use a public way by invita- 
 tion of the abutters. 
 
 In Massachusetts the obligation of a city or town to put up 
 guards against pitfalls which are so near to a highway as to make 
 it unsafe for travelers is similar to the obligation which it seems 
 is imposed upon abutters by the English law. It has never been 
 decided there that excavations made by the owner of land outside 
 the limits of a highway, but so near as to make it unsafe for 
 travelers, constitute a public nuisance, for creating or maintaining 
 wdiich the land owner may be iDiinished, or that in assessing dam- 
 ages for land taken for a highway any allowance is made to the 
 land owner for the loss of any right to use the land not taken, in 
 the same manner as if a highway had not been laid out. But if 
 it be assumed that, when a building abuts upon a sti-eet, it is for 
 the authorities of the city or town to determine whether the en- 
 trances into the building from the street are so constructed that 
 they may be permitted to remain, and if it be also assumed that 
 when entrances are permitted, which are constructed so as to be 
 closed, when not in use, by doors or some other barrier, the occu- 
 pier of the building is liable in damages to travelei-s upon the 
 street, if the doors are negligently left open or the barrier left 
 down, whereb}^ the street becomes unsafe and the travelers are 
 injured, still the facts stated, it is said, do not show, or tend to 
 show, negligence on the part of the defendants. 
 
 Tlie question whether an open excavation on one's own land is 
 so located as to make the use of a highway dangerous is one of 
 
 'See Barnes v. Ward, 9 C. B. 392; Fisher v. Prowse. 2 Best & S? 770; Hadley 
 V. Taylor, L. R. 1 C. P. 53; Beck v. Carter, 68 N. Y. 283; Bond v. Smith, 
 44 Hun, 219; Murray v. McShane, 52 Md. 217; State v. Society for Estab- 
 lishing Useful Manufactures, 42 N, J. L. 504; Haughey v. Hart, 6a 
 Iowa, 96. 
 
 *Mellen v. Morrill, 126 Mass. 545; Oliver v. Worcester, 102 Mass. 489,
 
 122 IMPOSED DUTIES, PEKSONAL. [Part I. 
 
 fact, not of law ;' and the treacherous character of an excavation 
 near a highway, rather than its exact location, will determine the 
 liability of the land owner, and the question of negligence is for 
 the jury/ 
 
 That defendant negligently removed a fence, leaving a private 
 vault unguarded and open, within ten feet from the sidewalk of 
 a public traveled street, in consequence of which plaintiff's child, 
 ■three years and ten mouths old, lost its life by falling into the 
 vault, shows a liabiHty.* 
 
 And it was held in Bond v. Smith, 44 Hun, 219, that a person 
 injured by falling into an open unguarded area adjoining an alley, 
 wliile passing along the alley in discharge of his duty, is not 
 -guilty of contributory negligence because of his knowledge of the 
 excavation. But on appeal it was held that the owner of prem- 
 ises on which are buildings flush witli an alley is not liable for the 
 death of a watchman, in the employ of a private detective agency, 
 who fell into an area between the buildings, which was separated 
 from the alley by a stone coping seven inches high and two feet 
 wide, and whose locality could always be determined by a watch- 
 man, where the circumstances of the accident, occurring at night, 
 are not disclosed, the watchman having been familiar witli the 
 premises/ 
 
 Where a police officer in pursuit of a disorderly person fell 
 •over the unprotected edge of a lot, which had been left as the 
 result of a city's act in grading down the street, the owner of the 
 lot is not liable to the person who has sustained injury by his 
 •death/ 
 
 b. Falling of Fence or Limhs of Trees. 
 
 Lot fronts in a city need not be fenced unless there be some 
 municipal regulation requiring it ;' but if the lot holder erect a 
 fence it must be of such a character as will not be likely to injure 
 
 ^^Crogan v. ScMele, 53 Conn. 186, 1 New Eng. Rep. 305. 
 
 ^Malloy V. Hlbernia Savings & Loan Society (Cal. April 32, 1889) 21 Pac. 
 
 Rep. 525. 
 *Bond V. Smith, 113 N. Y. 378. 
 s Woods V. Lloyd (Pa. Nov. 5, 1888) 16 All. Rep. 43. 
 ^Detroit V. Beecher, 75 Mich. 454.
 
 Chap. VIIL] PRIVATE SEWERAGE. 123 
 
 persons upon the street or on their own property, nor dangerous 
 to animals lawfully at large.' 
 
 Where a person is injured by the falling of a fence while he is 
 upon a sidewalk, and he had no previous knowledge of its insecu- 
 rity, there is no rule of law requiring it to be shown that the 
 owner of the fence had previous knowledge of its defective con- 
 dition before he can be held liable for the injury received.'' 
 
 "Where the? charter accepted by the city gave the common 
 ■council power to make by-laws for the regulation and protection 
 of trees in the public squares and streets, and they passed a by- 
 law imposing a fine on any person who should cut or otherwise in- 
 jure any shade tree in any public square or street, witliout the 
 •certain special license, and a limb which the city had negligently 
 allowed to remain on a tree in a public square fell upon and in- 
 jured plaintiff while he was passing under it, the city was liable.* 
 
 Where a municipality has for a long time had authority to plant 
 And preserve shade trees, proof that an individual owns and occu- 
 pies the lot in front of which a tree stands is not sufficient to 
 charge him with the duty of trimming it or with liability for in- 
 jury received from a falling branch. The owner of the lot is not 
 ■charged with the duty of placing trees in streets in the absence of 
 statute or regulation." But where a man plants a poisonous tree 
 upon his premises he must see that it does not project so as to ex- 
 pose animals upon neighboring grounds to injury/ 
 
 c. Private Sewerage. 
 
 An abutter on a passageway through which has run for more 
 than twenty years a common sewer used by such abutters and built 
 iunder an agreement that they should pay for making so much of it 
 
 ^Loveland v. Gardner, 79 Cal. 317, 4 L. R. A. 395; Siftk v. Cnimp, 112 Ind. 
 
 504, 12 West. Rep. 134. See also Powers v. Barlow, 53 Mich. 507; Fink 
 
 V. Missouri Furnace Go. 10 Mo. App. 69; Atlanta & W. R. R Co -^ 
 
 Hudson, 62 Ga. 680. 
 '^Hussey v. Eyan, 64 Md. 426, 2 Cent. Rep. 626. See also Norling v. Alice 
 
 (Brooklyn City Ct. June 3, 1890) 31 N. Y. S. R. 412. 
 ^ Jones V. NeiD Raven, 34 Conn. 1. 
 *WeUer v. McCormick, 47 N. J. L. 397, 1 Cent. Rep. 462. See Fuclis v 
 
 Schmidt, 8 Daly, 317. 
 ^Crowhurst v. Amersham Burial Board, L. R. 4 Excb. Div. 5.
 
 124 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 as passed by their respective premises, and so built that the tide which 
 ebbed and flowed in it and the other water which passed through 
 it was prevented by its wooden walls and the earth packed around 
 them from entering the cellars, who builds a drain from his prem- 
 ises into the sewer so carelessly that by loosening the earth he 
 causes the water to escape from the sewer at the time of high tide 
 into the cellar of another abutter, is liable for the damages so done, 
 although in its course into the neighbor's cellar the water passes 
 through his own, and prior to twenty years both were subject to 
 the natural flow and ebb of the tide, and would have continued to 
 be so subject but for the artificial filling up of vaults, between the 
 passageway and the edge of the harbor, and although all his acta 
 in building the drain were done upon his own laud.' So in the 
 construction of cellar drains and water pipes care must be used ta 
 avoid injury to or interruption of the use of ^the street without 
 authority or needlessly to prolong such use or cause injury," 
 
 d. Liability for Injury to Traveler and Care Re- 
 quired from Him. 
 
 It may be said generally that, where the owner of premises 
 fronting on a street obstructs the public travel on the street or 
 sidewalk, he is responsible for any injuries resulting therefrom to- 
 a traveler using ordinary care, unless he shows that such obstruc- 
 tion was temporary only or reasonably necessary, and the questions 
 of reasonable necessity and contributory negligence are ordinarily 
 for the jury.^ 
 
 Where a public road is obstructed or rendered impassable, the 
 traveler is not guilty of trespass in seeking a passage over adjoin- 
 ing lands, doing no unnecessary injury.* 
 
 ^Hawkesworth v. Thompson, 98 Mass. 77. See also M7ns v. Tr-oy, 59 N. Y. 
 500; Eu7nphries v. Cousins, L. R.A. 2 C. P. Div. 239; Bell v, Twentyman, 
 
 1 Q. B. 766. 
 
 ^Clark Y. Fry, 8 Ohio St. 358; Smith v. Simmons, 103 Pa. 32; Susquehanna 
 Depotv. Simmons, 112 Pa. 384. See also Tenant v. Oolding, 1 Salk. 21, 360. 
 
 ^Jochem V. Robinson, 66 Wis. 638; Oosport v, Evans, 112 Ind. 133; Erie v. 
 Magill, 101 Pa. 616. 
 
 ^Campbell v. Race, 7 Gush. 408; Morey v. Fitzgerald, 56 Vt. 487; Henn'sCase, 
 Sir W. Jones, 296; 3 Salk. 182, title Highways; Absor v. French, 2 
 Shower, 28; Young \. , 1 Ld. Raym. 725; Taylor v. Whitehead, 
 
 2 Doug. 745; Bullardv. Harrison, 4 Maule & S. 387; Holmes v. Seely, lt> 
 Wend. 507; Williams v. Safford, 7 Barb. 309; Newkirk v. Sabler, 9 Barb. 
 652.
 
 Chap. YIII.] LIABILITY FOR INJURY TO TRAVELER. 125 
 
 A person must be in the liighway for some lawful purpose in 
 order to be entitled to recover for an injury received through 
 some defect therein.' 
 
 But in order to be a traveler, it is not necessary that one should 
 be constantly moving, if he is a pedestrian, or that the vehicle he 
 drives, or that in which he is conveying goods, if he is using one, 
 shall be continuously in motion. It would certainly be impossible 
 to use the highways conveniently for the ordinary purposes of 
 business or social life, with teams or lighter carriages, if occasional 
 stops were not permitted to enable those using them to load and 
 unload teams, to receive and deliver goods, to enter shops and 
 stores, and to make brief calls of business, or even of a social char- 
 acter. During these stops, if reasonable in duration, one should 
 not lose his rights as a traveler, and the protection thus afforded to 
 his person or property." 
 
 In Smethur^t v. Barton Square Independent Cong. Churchy 
 148 Mass. 261, 2 L. E. A. 695, the plaintiff at the time of the ac- 
 cident was engaged in unloading, from his team, goods which were 
 to be deposited in tlie basement of defendant's building. The exact 
 ]30sition of plaintiff's team m^ as in dispute. The presiding judge de- 
 ■clined to instruct the jury that plaintiff was not a traveler, and in- 
 structed the jury that the plaintiff had the right to use the way for the 
 transportation of goods in a proper manner, not unreasonably ob- 
 structing or interfering with others, adding : " He has a right to stop 
 in the road for tlie purpose of getting out or getting in, or of unload- 
 ing a team in a reasonable manner ; and what is a reasonable manner 
 is a question for the jury to pass upon, under all the circumstances 
 of the case." Under this instruction the jury must have found 
 that he was unloading his team in a reasonable and jDroper man- 
 ner when the accident occurred. A traveler lawfully using the 
 way has the same rights to enjoy such use undisturbed as if he 
 were the owner in fee simple,^ One stepping upon the street to 
 
 ^Syle« V. PawUt, 43 Vt. 446; Blodgett v. Bos^ton, 8 Allen, 237; Tighe-j. Lowell, 
 
 119 Mass. 473; Lyons y. BrooMine, 119 Mass. 491; Wheeler v. WestpoH, 30 
 
 Wis. 393. 
 ^0' Linda v. Lothrop, 21 Pick. 292; Judd v. Farfio, 107 Mass. 264; Murray v. 
 
 McShane, 52 Md. 217, 36 Am. Rep. 367; Duffy v. Dubuque, 63 Iowa, 171, 
 
 50 Am. Rep. 743. 
 ^Shipley v. Fifty Asso. 101 Mass. 251.
 
 126 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 observe a procession or band pass, is still a traveler, lawfully using 
 the sidewalk.* 
 
 Two things must concur to support the action for damages for 
 injury from street obstruction : an obstruction in the road by the 
 fault of the defendant, and no want of ordinary care to avoid it 
 on the part of the plaintiff. This rule, stated in different language, 
 has been consistently and uniformly declared and adhered to by 
 appellate courts in every common-law jurisdiction." 
 
 One traveler has no more legal ground of complaint on account 
 of an obstruction in the public highway than others, unless he be 
 entitled to use the highway at the point of such obstruction for a 
 different purpose than other people, or has suffered some special 
 injury therefrom ; and the fact that he may be more frequently 
 inconvenienced does not give a cause of action.^ 
 
 One who suffers no pecuniary damage from an obstruction in a 
 highway, but is merely put to the inconvenience, common to all 
 who use the way, of removing the obstruction or taking a more 
 circuitous route, cannot maintain an action.* But if a public nui- 
 sance, such as an unlawful obstruction to a common passage, causes 
 peculiar damage to an individual, he may maintain an action there- 
 for, and the complaint need not negative the lawfulness of the ob- 
 struction, or its continuance, or that it was unavoidable — these 
 being matters of defense to be set up by answer.* 
 
 In an action for personal injuries received because of defective 
 streets or sidewalks, where contributory negligence is alleged as a 
 defense, it is only necessary for the plaintiff to show the exercise 
 of ordinary care and diligence in passing over such street or side- 
 walk ; and what constitutes ordinary care must be determined by 
 
 ' Varney v. Manchester, 58 N. H. 430. 
 
 ^Bruker v. Covington, 69 Ind. 33; Mt. Vernon y. DusoucTiett, 2Ind. 586; Riest 
 
 V. Goshen, 42 Ind. 339; Jonesboro & F. Turnp. Go. v. Baldwin, 57 lad. 86; 
 
 Gosportv. Evans, 112 lud. 133, 11 West. Rep. 118. 
 ^GHhert v. Greeley, 8. L. & P. R. Go. 13 Colo. 501. 
 *Winterbottom v. Derby, L. R. 2 Exch. 316; Wiggins v. Boddington, 3 Car. & 
 
 P. 544; Fineaux v. Hovenden, Cro. Eliz. 664; Hubert v. Groves, 1 Esp. 148; 
 
 Carpenters. Mann, 17 Wis. 155; Greene v. Nunnemaeher, 36 Wis. 50; 
 
 Houck V. Wachter, 34 Md. 265; Shipley v. Gaples, 17 Md. 179; Garitee v. 
 
 Baltimore, 53 Md. 422, 437; Farrelly v. Cincinnati, 2 Disney (Ohio) 516; 
 
 McCowan v. Whitesides, 31 Ind. 235; Shed v. Hawthorne, 3 Neb. 179; Barr 
 
 V. Stevens, 1 Bibb, 293. See Pittsburgh v. Scott, 1 Pa. 309. 
 ^Enos V. Hamilton, 27 Wis. 256; Dudley v. Kennedy, 63 Me. 465.
 
 Chap. VIII.] LIABILITY FOK INJURY TO TKAVELER. 12T 
 
 the facts surrounding each case.' The fact tliat a person walked 
 during the daytime into an excavation extending across the side- 
 walk, there being no dirt or other object to indicate such excava- 
 tion, is not of itself such conclusive proof of contributory negli- 
 gence as will prevent the submission to the jury of his action for 
 damages.' 
 
 In formulating a rule as to the care to be exercised in driving, 
 it should state that such care is required as persons of ordinaiy 
 intelligence and prudence would exercise under like circumstances,, 
 and not that the care must be such as an ordinary business man 
 or an ordinary man would use.'' It is not negligence jper se to- 
 drive a team at a lively rate through the streets of a city." That 
 plaintiffs were driving a blind horse on a dark night is woX jper se 
 contributory negligence which will prevent a recovery for an in- 
 jur}' received from a defective highway.* 
 
 ^Kinsley v. Morse, 40 Kan. 588. 
 
 'CanUoell v. Appleion, 71 Wis. 4G3. 
 
 ^Austin V. Eitz, 72 Tex. 391. 
 
 ^Crocker v. Knickerbocker Ice Co. 92 N. Y. 652; Carter v. Chambers, 79 Ala. 
 223; Brennan v. Friendship, 67 Wis. 223. Evidence that the rate of 
 si>eed exceeds that permitted by a city ordinance is admissible on the 
 question of negligence. Jetter v. New York & H. R. Co. 2 Abb. App 
 Dec. 458; Eanlon v. South Boston B. Co. 129 Mass. 310; Hall v. Ripley, 
 •119 Mass. 135; Wright v. Maiden R. Co. 4 Allen, 283. The plaintiff 
 cannot recover for an injury he claims to have been occasioned by the 
 defective and dangerous condition of a turnpike road, where he con- 
 tributed to cause his misfortune by driving a horse not ordinarily gentle, 
 or by driving with one hand disabled by previous ailments, so as to inter- 
 fere with the proper management of his team, or from his want of that 
 degree of attention, circumspection, skill and care to avoid danger which 
 an ordinarily prudent and careful driver habitually employs, or might 
 reasonably be expected to employ, in similar circumstances. Stri^igerv 
 Frost, 116'lnd. 477, 2 L. E. A. 614; Baltimore & L. Tump. Co. v. Cass- 
 tcell, 66 Md. 419, 6 Cent. Rep. 462. A traveler must exercise reasonable 
 care in the use of a highway and in the selection of his horse, harness 
 and carriage, and if he exercise such care, the fact that the vices of the 
 horse or defects in the harness or carriage may have concurred with the 
 unsafe condition of the highway in causing the injury will not defeat 
 his action. Clark v. Barrington, 41 N. H. 44; Tucker v. Uenniker, Id. 
 817; Noyes v. Boscawen, 64 N. H. 361, 5 New Eng. Rep. 70. It is a 
 question for the jury whether driving at night without lights, when it 
 is too dark to distinguish the highway, constitutes contributory negli- 
 gence. Daniels v. Lebanon, 58 N. H. 284. The driver of a fire-engine 
 has a right to cross the neutral ground in the street of a city at points 
 between crossings for the purpose of arriving speedily at a fire. Wilson 
 V. Great SoutJiern Teleph. & Telcg. Co. 41 La. Ann. 1041. But see the 
 questionable ruling in Morse v. Sweenie, 15 111. App. 486, applying a city 
 ordinance limiting the speed in driving upon the street to fire-engines. 
 
 '^Brackenridge v. Fitchburg, 145 Mass. 160, 5 New Ene:. Rep. 171; Smith v. 
 Wildes, 143 Mass. 556, 3 New Eng. Rep. 744; Wright v. Templeton, 13^ 
 Mass. 49; Daniels v. Lebanon, 58 N. H. 284.
 
 128 IMPOSED DUTIES. PERSONAL. [Part I. 
 
 The fact tliat a plaintifE has knowledge of a danger that he will 
 encounter if he pursues his way does not always necessarily pre- 
 clude a recovery, but it is in every case an important factor.' It 
 will not always avail the plaintiff that he was not fully aware of 
 his danger ; for a plaintiff is bound to know where the circum- 
 stances are known to him, or the hazard is apparent to a reasonably 
 prudent man.* A person who, knowing that there is no street 
 crossing at a certain place, connecting with a sidewalk that has 
 been erected, and who walks off the end of the sidewalk without 
 looking, is guilty of contributoiy negligence which will prevent a 
 recovery for injuries thereby sustained.' A person who uses 
 a sidewalk or other highway which his observation, prudently ex- 
 ercised, would inform him was dangerous, takes the risk of such 
 injuries as may result to him by open and apparent defects such 
 as his observation ought to have detected and avoided ; but if the 
 injury does not result from these, but from another and latent de- 
 fect which no reasonable degree of prudence or care could detect, 
 he will not be considered as taking the risk of injury from this 
 latent defect." Still prior knowledge of a defect in a street, by 
 •one who is injured, is not necessarily proof of contributory negli- 
 gence.^ Because one has knowledge that a highway or sidewalk 
 is out of repair, or even dangerous, he is not therefore bound to 
 forego travel upon such highway or sidewalk." That the plain- 
 tiff was acquainted with the condition of the road will not defeat 
 
 ^Dundafi v. Lansing, 75 Mich. 499, 5 L. E. A. 143; Lowell v. Watertown Twp. 
 58 Mich. 568; Toledo, W. & W. R. Co. v. Brannagan, 75 Ind. 490, and 
 cases cited; Murphy v. Indianapolis, 83 Ind. 76; Henry County Tump. Go. 
 V. Jackson, 86 Ind. Ill; Porter County v. Dombke, 94 Ind. 72; Indianapo- 
 lis V. Cook, 99 Ind. 10; Aurora v. Bitner, 100 Ind. 396; Byerly v. Ana- 
 mosa, 79 Iowa, 204; Ross v. Davenport, 66 Iowa, 548; Walker v. Decatur 
 County, 67 Iowa, 307; Hunger v. Marshalltoicn, 59 Iowa, 763; Rice v. 
 Des Moines, 40 Iowa, 638; Hanlon v. Keokuk, 7 Iowa. 488. 
 
 ^Pennsylvania R. Co. v. JIe?iderson, 43 Pa. 449; Southern R. Co. v. Ken- 
 drick, 40 Miss. 374; Lake Shore & M. S. R. Go. v. Pinchin, 112 Ind, 593. 
 
 ^Plymouth v. Milner, 117 Ind. 334. 
 
 *Moore v. Huntington, 31 W. Va. 843. It is not contributory negligence 
 not to look out for danger where there is no reason to apprehend any. 
 Etigel V. Smith (Mich. July 3. 1890) 46 N. W. Rep. 21. 
 
 ^McKeigne v. Janesville, 68 Wis. 50. 
 
 ^Huntington v. Breen, 77 Ind. 30; Wilson v. Trafalgar & B. G. Or. Road 
 Co. 83 Ind. 326, 93 Ind. 287; JSfave v. Flack, 90 Ind. 212; South Bend v. 
 Hardy, 98 Ind. 586; Albion v. Hetrick, 90 Ind. 546; Turner v. Buchanan, 
 82 Ind. 147; Gosport v. Evans, 112 Ind. 133, 11 West. Rep. 118.
 
 <Jhap. yilL] LIABILITY FOR INJURY TO TRAVKLEK. 129 
 
 his right to recover, if his walking on the dangerous side was in 
 ■consequence of darkness, and not negligence on Iiis part.' The 
 doctrine to be extracted fi-om the cases is that, altliough a side- 
 walk or highway may be in an apparently defective or dangerous 
 condition, yet a person, with knowledge of the defect or danger, 
 is not, on that account, obliged to abandon travel upon the ]ii<>-h- 
 way, if, by the exercise of care proportioned to the known danger, 
 he may reasonably expect to shun or avoid the defect,' 
 ■ Where a sidewalk had been constantly and generally used and, 
 though unsafe, very few had received injuries therefrom, and 
 plaintiff was familiar with it and had been over it frequently and 
 knew it to be a place of danger, but received the injury there on 
 a dark night, he was not necessarily guilty of negligence in tak- 
 ing the unsafe walk.' 
 
 A woman is not guilty of contributory negligence in passing 
 over a sidewalk which she knew was not in good repair, where 
 she did not regard it as dangerous, but passed over it frequently, 
 as others did daily, without mishap, where she walks carefully, 
 and it is the only walk leading to the place of her destination." 
 
 Where there is danger, and the peril is known, whoever en- 
 counters it voluntarily and unnecessarily cannot be regarded as 
 exercising ordinary prudence, and therefore does so at his own 
 risk.' One who knows of a dangerous obstruction in a street or 
 sidewalk, and yet attempts to pass it when, on account of dark- 
 ness or other hindering causes, he cannot see so as to avoid it, 
 takes the risk upon himself.* For a much greater reason does 
 he take the risk upon himself, if, seeing an obstruction and know- 
 ing its dangerous character, he deliberately goes into or upon it 
 when he is under no compulsion to go, or might avoid it by going 
 .around,'' 
 
 'Mill Creek Twp. v. Perry (Pa. Nov. 7, 1887) 10 Cent. Rep. 299. 
 
 '^Horton v. Ipswich, 12 Cush. 488. 
 
 ^AUoona v. Lotz, 114 Pa. 238, 6 Cent. Rep. 135. 
 
 *Troxel v. Vinton, 77 Iowa, 99. 
 
 = ^Corlett V. Leavenworth, 27 Kan. 673; Sclinefer v. Sandusky, 33 Ohio St. 
 
 246; Gosport v. Evans, 112 Ind. 133, 11 West. Rep. 118. 
 'Thompson v. Cincinnati, L. & C. B. Co. 54 Ind. 197; Louisville & N. JR. Co. 
 
 V. Schmidt, 81 Ind. 264; King v. Thompson, 87 Pa. 365; Toledo, W. .f: IF. 
 
 li. Co. V. Brannagnn, 75 Ind. 490; Erie v. Mac/ill, 101 Pa. 616; WiUon v. 
 
 Charlestown, 8 Allen, 137; Durkin v, Troy, 61 I3arb. 437; Centralia v. 
 
 Krouse, 64 111. 19. 
 
 9
 
 130 IMPOSED DUTIES, PEKSoisrAL. [Part I. 
 
 One who intentionally and unnecessarily drives his wagon on a 
 sidewalk in violation of an ordinance is gnilty of contributory negli- 
 gence which will prevent recovery for injuries received, caused 
 by a post which was so near tlie way as to constitute a defect.' 
 
 Where the evidence is conflicting as to whether a sidewalk as 
 constructed was sufficiently safe for the amount of travel passing 
 over it, the question is one of fact for the determination of the 
 jury," Whether the covering to an opening in the sidewalk was made 
 and adjusted in a reasonably secure and safe way is for the jury.* 
 It is improper to take the determination of the question of 
 negligence from the jury, where the plaintiff, occupying apart- 
 ments accessible only through a door opening on the sidewalk, the 
 building being the property of the defendant, stepped upon the 
 cover of a coal hole on the sidewalk, which gave way, precipitat- 
 ing her into the hole and injuring her." 
 
 Whether a passer-by acted in the exercise of proper care to pass- 
 over an obstruction on the sidewalk, caused by earth deposited 
 there by an adjoining owner, or was bound to go around such ob- 
 struction into another street, was a question of fact, and it cannot 
 be said that the attempt to pass over the obstruction, with knowl- 
 edge of its existence, was, as matter of law, culpable negligence.^ 
 It is not negligence ^e/" se to run along a sidewalk in the dark, 
 and where horses attached to a wagon and left unhitched in a bor- 
 ough street after dark start to run away, and the owner, a com- 
 parative stranger in the borough, running along the sidewalk ta 
 catch them, steps into a depression in the sidewalk, unknown to 
 him, and breaks his leg, it is for the jury, in an action for damages 
 for the injury, to say whether the plaintiff exercised reasonable 
 care under the circumstances, or was guilty of contributory negli- 
 gence.^ 
 
 Although the plaintiff was familiar with the country road on 
 which he was injured by falling into an unguarded excavation 
 
 '^Arey v. Newton, 148 Mass. 598. 
 
 ^Worker v. Sandy Lake, 130 Pa. 123. 
 
 ^Dickson v. Eollkter, 123 Pa. 421. 
 
 ^Delory v. Canny, 144 Mass. 445, 4 New Eng. Rep. 258. 
 
 ^Sliook V. Colwes, 108 N. Y. 648, 11 Cent. Rep. 801. See Osborne v. Detroit, 
 
 32 Fed. Rep. 36. 
 ^Shmandoah v. Erdman{VQ.. Feb. 27, 1888) 11 Cent. Rep. 440.
 
 Chap. YIIL] LIABILITY FOE INJURY TO TKAVELEK. 131 
 
 therein, at night time, yet the question of his neojh'gence and the 
 liabihty of the township was a proper one for the jury ;' and 
 one who in violation of an express statutory duty places or 
 causes an obstruction in a public highway, will not be permitted 
 to show that he did not anticipate an iujur}^ which was the direct 
 result of his unlawful act, when the person suffering the injury 
 was without fault." 
 
 The question whether plaintiff, suing for personal injuries fi'om 
 a defective highway, was a traveler, will not be submitted to the 
 jury where there is no evidence to show that he was not a traveler." 
 
 Whether a traveler in deviating from the usual path of travel, 
 although the traveled track was in good condition, was using rea- 
 sonable and necessary care, is a question for the jury.* 
 
 An injury to lands or houses which renders them useless, or 
 even uncomfortable for habitation, is a nuisance. ° Using a smith's 
 forge," operating a tobacco mill,' carrying on a tannery,* keeping 
 a livery stable," manufacturing soap," under such circumstances, 
 have been respectively held to constitute a nuisance. If one fixes 
 a spout or cornice which gathers the water that falls upon his 
 roof, and turns it upon his neighbor's land, an action lies." If 
 one's real estate is thus protected, his person must be equally pro- 
 tected. If water may not be thrown upon his land, it may not 
 be thrown upon his head while he is standing on his land. A 
 traveler in the use of the highw^ay is as much entitled to 
 protection as if he were the owner in fee simple; and, as a 
 formal proposition, it is true that an}'- act of an individual 
 though performed on his own soil, if it detracts from the safety 
 of travelers, is a nuisance.'" It cannot be doubted that the pro- 
 
 ^Mill Greek Ttop. v. Pernj (Pa. Nov. 7, 1887) 10 Cent. Rep. 299. 
 
 ^Wabash, St. L. & P. R. Co. v. Locke, 113 lad. 404, 11 West. Rep. 877. 
 
 Worris v. Haverhill, G5 N. H. 89. 
 
 ^Austin V. Ritz, 73 Tex. 391. 
 
 ^Howard v. Lee, 3 Sandf. 281. 
 
 '^Bradley v. Oill, Lutw. 29. 
 
 "> Jones V. Poicell, Hutt. 136. 
 
 ^Rex V. Pappineau, 1 Str. 6S6. 
 
 ^Coker v. Birge, 10 Ga. 336; 
 
 ^°Brady v. Weeks, 3 Barb. 157. 
 
 ^^Rei/nolds v. Clarke, 3 Ld. Rayra. 1399, 1 Str. 634; Fay v. Prentice, 1 C B. 
 
 829; Fellows v. Sackett, 15 Barb. 96. 
 ^■Dygerl v. Sckenck, 23 Wead. 447.
 
 132 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 prietor of land adjoining the highway may erect upon it a struc- 
 ture that would catch falling rain and snow and retain it until it 
 becomes a large mass, and allow it to freeze and thaw ; but he 
 must so construct his roof that, after the mass has accumulated, it 
 will not, in certain states of the weather, be projected by its own 
 weight upon the sidewalk.^ 
 
 ^Shipley V. Fifty Asso. 101 Mass. 251.
 
 CHAPTEE IX. 
 
 WHEN PROOF OF NEGLIGENCE REQUIRED. 
 
 Sec. 15. Injury from Unusual Cause, not in Itself a Nuisance, Re- 
 quires Proof of Negligence also. 
 
 Sec. 16. The Cause of an Injury may Create a Presumption of 
 Negligence in the Person Setting it in Motion. 
 
 Section 15. — Injury from TInusual Cause, not in 
 Itself a JYuisance, Requires Proof of JS^egli- 
 gence also. 
 
 Mischief which could by no reasonable possibility have been 
 foreseen, and which no reasonable person would have anticipated, 
 cannot be taken into account as a basis upon which to predicate a 
 wrong, A reasonable man does not consult his imagination, 
 but can be guided only by a reasonable estimate of probabilities. 
 The reasonable man, then, to whose ideal behavior we are to look 
 as the standard of duty, will neither neglect what his reason and 
 experience will enable hini to forecast as probable, nor conduct, 
 on a basis of bare chances, a business whose success is dependent 
 upon his accuracy in forecasting the future. He will order his 
 precaution by the measure of what appears likely in the usual 
 course of things.' 
 
 The proper inquiry is not whether the accident might have been 
 avoided if the one charged with negligence had anticipated its oc- 
 currence, but whether, taking the circumstances as they then ex- 
 isted, he was negligent in failing to anticipate and provide against 
 the occurrence.' The duty imposed does not require the use of 
 
 ^Nitro-Glycerine Case, 82 U. S. 15 Wall. 524, 21 L. ed. 206; Crouch v. London 
 & N. W. R. Co. 14 C. B. 291; Brass v. Maitland, 6 El. & BI. 485; Pollak, 
 Torts, 36 ; Readhead v. Midland R. Co. L. R. 4 Q. B. 379 ; Vaughan v. 
 Taff Vale R. Co. 5 Hurl & N. 679; McPadden v. New York C. R. Co. 44 
 N. Y. 478; Louisville C. R. Co. v. Weams, 80 Ky. 420; Chicago, St. L. & 
 N. 0. R. Co. V. Trotter, 61 Miss. 417; Philadelphia & R. R. Co. v. Yeiser, 
 8 Pa. 366. 
 
 * Muster v. Chicago, M. & St. P. R. Co. 61 Wis. 325; Collyer v. Pennsylvania 
 R. Co. 49 N. J. L. 59. 4 Cent. Rep. 568; Case v. Chicago, R. 1. d- P. R. 
 Co. 64 Iowa, 762; Beatty v. Central Iowa B. Co. 58 Iowa, 242, 8 Am. & 
 Eng. R. R. Cas. 210.
 
 134: IMPOSED DUTIES, PERSONAL. [Part I. 
 
 every possible precaution to avoid injury to individuals, nor of 
 any particular means which it may appear, after the accident, 
 would have avoided it. The requirement is only to use such rea- 
 sonable precautions to prevent accidents as would have been 
 adopted by prudent persons prior to the accident.' 
 
 In an action for an injury, occasioned by the alleged negligence 
 of the defendant, the negligence, if any, of either plaintiff or de- 
 fendant, is to be measured by the condition of things at the place 
 where the accident took place, as they were known to exist by each 
 of the i^arties at the time the acts of each are complained of as 
 being negligent ; and these acts cannot be characterized, one way 
 or the other, by the subsequent determination of conditions un- 
 known at the time to both, or to either, except so far as that 
 knowledge may properly affect the act of the one so informed. 
 
 Between the roadbed of a railway, upon which were laid two 
 tracks, with a space of 5 to 8 feet intervening, and certain quar- 
 ries, there was a dirt road, on the average about 4 feet lower than 
 the roadbed, used by quarry teams; but workmen in passing on 
 foot to and from their work, as well as other pedestrians, used the 
 roadbed, and about 7 o'clock in the morning it was customary to 
 find quite a number of people passing along it ; and the owners 
 of the land, over which the railroad easement was granted, laid off 
 that part of the track lying west of the roadbed into lots and 
 blocks and located on the plat a street 45 feet wide, running j^ar- 
 allel with the west side of the railroad track, and filed and re- 
 corded a dedication thereof to the public; and the street was 
 afterwards recognized by the city on its plats, but was never im- 
 proved or definitely located on the ground used, except in connec- 
 tion with the dirt road and the railroad ; and the evidence of the 
 plaintiff, who sued the railroad company for the death of her in- 
 testate, alleged to have been caused by the negligence of the de- 
 fendant in running upon him, failed to show the point at which 
 the deceased entered upon the track, and tended to show that he 
 had been walking between the rails on the western track, for a 
 distance of 75 or 100 yards, without giving attention to trains ap- 
 proaching him from the rear, when he was struck by a train hav- 
 ing him in view at a distance of 500 yards ; and the evidence of 
 
 ^Chicago, B. & Q. B. Co. v. Stumps, 55 111. 367; Article, Bes Ipsa ^oquitur, 
 10 Chicago L. J. 261.
 
 Ohap. IX J INJURY FROM UNUSUAL CAUSE. 135 
 
 tlie defendant tended to show that tlie deceased was walkin2:in the 
 space between the east and west tracks until the engine approached 
 within 75 or 90 feet, when he stepped on the west track and was 
 ahnost instantly struck by the engine, and that as soon as he 
 stepped on the track all possible efforts were made to stop the 
 train; and there was evidence that the defendant had failed to 
 sound the bell, there being no public crossing, nor a public street, 
 road or highway, properly speaking, such as are contemplated in 
 the Statute requiring a bell to be rung on approaching them. 
 Under these circumstances it was said that the acts of either 
 plaintiff or defendant cannot be affected one way or the other by 
 the fact, which could only be determined by an accurate survey, 
 as to where the true line of division between the roadbed and 
 street would fall, on the one or the other side of the exact spot 
 where the deceased was struck, or if it should turn out that the 
 street and roadway lapped, and that that spot was both within the 
 limits of defendant's right of way and also of the platted street.' 
 The prudence and propriety of men's doings are not judged by 
 the event, but by the circumstances under which they act. If they 
 act with reasonable prudence and good judgment they are 
 not to be made responsible because the event from causes which 
 •could not be foreseen nor reasonably anticipated has disappointed 
 their expectations.^ Where a blind man fell through an open 
 hatchway in the building of defendant, through his mistake in 
 •opening the wrong door, it was necessary to prove negligence of 
 the owner of the building to secure a recovery.' If a hre is kin- 
 dled by one on his own land and there appears no danger of its 
 spreading to endanger neighboring lands, the person kindling the 
 "fire will not be liable because such injury occurs by reason of a 
 sudden wind sweeping over the locality ;* nor if a coal pit be fired, 
 will injury resulting create liability, without proof of negligence.' 
 
 ^Guenther v. 8t. Louis, 1. M. & S. R. Co. 95 Mo. 286, 14 West. Rep. 735. 
 
 ^The Amethyst, 2 Ware, 28, 2 N. Y. Leg. Obs. 312. 
 
 ^Oyshterbojik v. Gardner, 17 Jones & S. 263. 
 
 ^Sweeney v. Merrill, 38 Kan. 216; Calkins v. Barger, 44 Barb. 424: Clark v. 
 
 Foot, 8 Johns. ■422; Stuart v. Raicley, 22 Barb. 619; Falin v. Reichart, 8 
 
 Wis. 255. 
 ^Tourtelot v. Rosebrook, 11 Met. 460. See Herwy v. Nourse, 54 ]\Ie. 256; 
 
 Bachelder v. Reagan, 18 Me. 32; Fraser v. Tapper, 29 Vt. 409; Dewey v. 
 
 Leonard, 14 Minn. 153; Vaughan v. Toff Vale R. Co. 5 lluil. & N. 678.
 
 136 IMPOSED DUTIES, PEKSONAL. [Part L 
 
 Where cotton in charge of a warehouseman was burned by a fire 
 which originated in a neighboring oil-mill, if the mill was not a 
 cause of reasonable apprehension of fire, either of and by itself, or 
 taken in connection with other surroundings, danger of fire from 
 other sources cannof be considered in determining liability from 
 negligence in leaving the cotton in that place.' So a manufac- 
 turer of clothes who uses an article in common use for dyeing, 
 and which has never before been known to injure one handling 
 the cloth, is not liable to a purchaser who is thus injured,* 
 Where an injury results from an act or omission which could only 
 become tortious on account of the relations which the parties sus- 
 tained to each other, and where the very substance of the wrong 
 complained of, itself, was the failure to act with due foresight, 
 then the right of action depends primarily upon so fixing the re- 
 lation of the parties as to show the defendant's obligation,' and 
 upon showing further that the harm and injury complained of 
 were such as a reasonable man in the defendant's place should have 
 foreseen and provided against,* In such case it is not enough to- 
 show that an accident happened, and that death or injury resulted 
 therefrom,' Negligence is not to be presumed upon the fact of 
 an occurrence, the statement of which suggests its anomalous, ex- 
 ceptional and extraordinary character." For injury caused to a 
 passenger by the fall of a hydrauhc elevator, where it had all 
 known safety appliances, and the owner had no knowledge or 
 reasonable cause to believe there was any danger from air coming 
 from the street pipe, there could be no liability even if he had 
 knowledge that the water was being shut off from the street main.'' 
 
 ^Merchants Wharf-Boat Asso. v. Wood, 64 Miss. 661. 
 
 ^Gould V. Slater Woolen Go. 147 Mass. 315, 6 New Eng. Rep. 599. 
 
 ^Creed v. Hartmann, 29 N. Y. 6^\; Roberts v. Johnson, 58 N. Y. 613, 
 
 *Cottenll V. Starkey, 8 Car. & P. 691 ; The Clarita, 90 U. S. 23 Wall. 1, 23 L. 
 ed. 146. 
 
 ^Ashley v. Hart, 147 Mass. 573, 1 L. R. A. 355; Atlas Engine Works v. Ran- 
 dall, 100 Ind. 293; Indiana, B. & W. R. Co. v. Bailey, 110 Ind. 75, S 
 West. Rep. 516; Bowling v. Allen, 74 Mo. 13. 
 
 ^Buckley v. Outta Percha & R. Mfg. Go. 113 N. Y. 540; Eandelun v. Bur- 
 lington, G. R. & N. R. Co. 73 Iowa, 709; Blanchett v. Border City Mfg. 
 Go. 143 Mass. 21, 3 New Eng. Rep. 92; Allison Mfg. Co. v. McCormick, 
 118 Pa. 519, 11 Cent. Rep. 396; Carstairs v. Taylor, L. R. 6 Exch. 217; 
 Eammack v. White. 11 C. B. N. S. 588-593; Baker v. Fehr, 97 Pa. 72; 
 Nolan Y. Shickle, 3 Mo. App. 300; Scliultz v. Pacific R. Co. 36 Mo, 32. 
 
 ''Shattuck V. Rand, 142 Mass. 83, 2 New Eng. Rep. 378.
 
 Chap. IX.] INJURY FKOM UNUSUAL CAUSE. 137 
 
 In an action ajjainst one who had contracted to haul tlie water 
 pipes to be used in the repair of a certain street, for the death of 
 a child upon wiiom one of the water pipes had rolle(^ from th& 
 place in which it waspiled, so secured and protected that it would 
 have remained tliere unless disturbed by some unexpected force, 
 no recovery was allowed.' So a railroad company is not liable 
 to an engineer for injuries caused by the breaking of a rail having 
 710 visible defect, which is occasioned by frost.* To load a tender 
 with coal above the level of the top is not negligence j?*?/* se ; and 
 notice to the railroad company that its employes were in the habit 
 of so doing, without knowledge or notice that such practice was 
 dangerous, is not sufficient to make a company liable to a track- 
 walker by coal falling on him resulting from such method of load- 
 ing.^ A railroad company is not bound to have at a given point 
 an engine of sufficient power to avert the consequences of an ac- 
 cident which it had no reason to anticipate. Thus, where an em- 
 ploye was caught by the brakebeam of a moving car, and injured, 
 the company was held not liable merely because the engine at- 
 tached to such car was, by reason of a defect in its flue and main- 
 steam valve, not sufficiently powerful to stop the car in time to 
 avert the injury.* One working a coal mine is not bound as to 
 his employes to take precaution against all possible dangers. His 
 full duty is performed by guarding them against those reasonably 
 probable." 
 
 Where the obligation is not in its nature so nearly absolute a& 
 it is said to be in case of a passenger, and the circumstances of the 
 accident suggest, at first blush, that it may have been unavoidable 
 notwithstanding ordinary care, the plaintiff, charging negligence, 
 assumes the burden of proving that the defendant has, by some 
 act or omission, violated a duty incumbent on it, from which the 
 injury followed in natui al sequence;* and even in the extreme case 
 of a carrier, that which never happened before and w^hich, in its 
 
 ^Stafford v. Rubens, 115 111. 196, 1 West. Rep. 640. See Baldwin v. St. 
 Louis, K. & N. R. Go. 68 Iowa, 37. 
 
 ^Devlin v. Wabash, St. L. & P. R. Co. 87 Mo. 545, 4 West. Rep. 54. 
 
 ^Schultz V. Chicago & N. W. R. Co. 67 Wis. 616. 
 
 *Bajus V. Syracuse, B. & N. T. R. Co. 103 N. Y. 313, 4 Cent. Rep. 518. 
 
 ^Brew V. Oaylord Coal Co. (Pa. Apr. 26, 1886) 3 Cent. Rep. 389. 
 
 ^itro Glycerine Case, 82 U. S. 15 Wall. 524, 21 L. ed. 206; Mitchell v. Chi- 
 cago & G. T. R. Co. 51 Mich. 236; Patterson, R. Ace. L. § 373.
 
 138 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 ■character, is sncli as not naturally to occur to a prudent man to 
 guard against its happening at all, cannot, when in the course of 
 3'ears it dt>es happen, furnish good ground for a charge of negli- 
 gence in not foreseeing its possible happening and guarding 
 against that remote contingency.' 
 
 In Dougan v. Champlain Transp. Co., 56 I^. Y. 1, the plain- 
 tiff's intestate, a passenger, slipj)ed under the gangway rail of a 
 steamboat, fell overboard and M^as drowned; and it appeared that 
 all the boats upon Lake Champlain were constructed in the same 
 manner, that they had been so run for many years, and there was 
 no proof tending to show that anyone had gone overboard in that 
 way. The plaintiff having been nonsuited, the judgment was af- 
 firmed on the ground that, as there was no proof tending to show 
 that any such danger would be apprehended by a reasonably prudent 
 person from the omission to inclose the space between the railing 
 and deck so as to preclude the possibihty of slipping under it, no 
 such duty was by law imposed upon the Transportation Company. 
 In Loftus V. Union Ferry Co., 84 N. Y. 455, the plaintiff's intes- 
 tate, a child of six years, while leaving one of the defendant's boats, 
 fell through one of the openings of the guard rails into the water 
 and was drowned. Tlie plaintiff having recovered, the verdict 
 was set aside, and Andrews, «/., in affirming the judgment, held 
 that, if the defendant ought to have foreseen that such an accident 
 might happen, or if such an accident could have reasonably been 
 anticipated, the omission to provide against it would be actionable 
 negligence; but the facts in that case rebutted any inference of 
 negligence in that respect, as the company had the experience of 
 years certifying to the sufficiency of the guard; that it was possi- 
 ble for a child, even a man, to get through the opening was appar- 
 ent enough, but that this was likely to occur was negatived by the 
 fact that multitudes of persons had passed over the bridge with- 
 out the occurrence of such a casualty. In Le Barron v. East 
 Boston Ferry Co., 11 Allen, 312, a ferry boat was held not liable 
 as matter of law for the loss by a driver of his load through his 
 
 ' Crocheron v. North Shore 8. 1. F. Co. 56 N. Y. 656; Dougan v. Champlain 
 Transp. Co. 56 N. Y. 1; Cleveland v. New Jeraey Steamboat Co. 68 N. Y. 
 308; Loftus v. Union Ferry Co. 84 N. Y. 455; Burke v. Wiiherbee, 98 
 N. Y. 562; Marsh v. Chickering, 101 N. Y. 396; HulbeU v. Tonkers, 104 
 N. Y. 434, 6 Cent. Rep. 499.
 
 Chap. IX.] INJURY FROM UNUSUAL CAUSE. 13l> 
 
 wagon striking the fall of the ferry. And this is true where the 
 arm of a passenger was injured by being caught between the car 
 and an overliangiiig portion of a load on a standing car,' or by 
 •contact between street car and load of hay," or by the dropping of 
 the fastening of a bridge erected under charge of town authorities,' 
 or where a depot roof was broken down upon a passenger/ or an 
 injury resulted in stepping from a car.* 
 
 In a recent case it appeared that a passenger seated in a railway 
 •ear was injured by the falling of a clothes-wringer from tlic rack 
 above the seat, another passenger having placed it there. There 
 was no evidence that the position of the wringer in the rack Avas 
 such as to indicate that it was insecure, or that there was any 
 reason to anticipate that an accident might happen. It was held 
 that the failure of the trainmen to notice the wringer, or, if 
 noticed, to order its removal, was not negligence.* 
 
 Grafter v. Metropolitan B. Co., L. R. 1 C. P. 300, was a suit 
 to recover for an injury occasioned by the plaintiff falling on a 
 stairway which the defendant's duty required it to keep in a safe 
 condition. The cause of the slipping was that the brass nosing of 
 the stairs had been worn smooth by travel over it; and a builder 
 testified that, in his opinion, the staircase was unsafe on account 
 •of the smooth condition of the nosing and the absence of a hand- 
 rail. There was nothing to contradict this, except that great 
 numbei's of persons had passed over the stairs, and that no acci- 
 •dent had ever happened before. Setting aside a verdict for the 
 plaintiff, the court held there was no evidence of negligence.'' 
 
 In Wabash, St. L. & P. R. Co. v. Loche, llSInd. 404, 11 
 West. Rep. 877, the decedent, in his line of duty, was standing on 
 a flat car on a side track of the defendant's railway near the depot, 
 
 1 Holbrook v. Utica & S. B. Co. 12 N. Y. 236. 
 
 2 Federal St. & P. V. R. Co. v. Gibson, 96 Pa. 83. 
 
 3 Daniel v. Metropolitan R. Co. L. R. 3 C. P. 216. 
 
 4 Welfare v. London <& B. R. Co. L. R. 4 Q. B. 663. 
 
 ^Mitcliell V. Chicago & O. T. R. Co. 51 Mich. 236; Delaware, L. & W. R. 
 Co. V. Napheys, 90 Pa. 135. See Gerhard v. Bates, 2 El. & Bl. 490; Sief- 
 fen V. Chicago & N. W. R. Co. 46 Wis. 259; Kitterinqham v. Sioux City 
 <& P. R. Co. 63 Iowa, 285; Sikes v. Sheldon, 58 Iowa, 744. 
 
 ^Morris v. New York C. & H. R. R. Co. 106 N. Y. 678, 9 Cent. Rep. 288. 
 
 ^Blyth V. Birmingham Water Works Co. 11 Exch. 781; Metropolitan R. Co. 
 V. Jackson, L. R. 3 App. Cas. 193; Sharp v. Powell, L. R. 7 C. P. 253.
 
 140 IMPOSED DUTIES, PERSONAL. [Part I.. 
 
 and a line of telegraph poles of the usual height, which supported 
 wires crossing the track to the depot, stood along the company's 
 right of way, where they had been maintained substantially in the 
 same position since 1874, — one of the wires being used by the 
 railway company', the other in the business of the telegraph com- 
 pany, — and a freight train running on its usual time at a moder- 
 ate rate of speed approached the station over the main track, and 
 on the top of one of the cars, somewhat above the ordinary height,^ 
 stood a brakeman, six feet three and a half inches in height, 
 whose head came in contact with one of the wires which crossed 
 the track, which struck the back of his head or neck about the 
 lower part of the ear, inflicting only a sliglit bruise. The blow^ 
 however, broke the insulator of the telegraph pole, causing the 
 wire to become detached and fall down on the top of a moving 
 car, catching a brake-handle which carried it forward with the 
 moving train, the wire coiKng about the body of the decedent as he 
 stood on the flat car, dragging him from the car, and inflicting in- 
 juries resulting in instant death. A verdict having been rendered 
 against the defendant and the telegraph company in a suit for 
 negligently causing the death, judgment was rendered thereon 
 against the defendant alone, and upon appeal the judgment was 
 reversed upon the ground that the record failed to disclose any 
 evidence from which a reasonable inference could fairly arise that 
 the railroad company had omitted any precaution which prudent 
 persons engaged in any like business would have taken. 
 
 It was said that a telegraph wire carried from one pole to another 
 is not, in and of itself, a dangerous object. If it should become 
 detached and fall to the ground or upon someone, it would not, 
 under ordinary circumstances, put life or limb in jeopardy. It 
 could only become a source of danger to persons other than those 
 who came in contact with it by some combination of circumstances 
 or conjunction of forces beyond the telegraph wire itself. The 
 railroad company was only bound to anticipate such combination 
 of circumstances and accidents and injuries therefrom as, taking 
 into account its own past experience, and that of others in similar 
 situations, together with what was inherently probable in the con- 
 dition of the wires as they related to the conduct of its business, it 
 might reasonably forecast as likely to happen. The chief consid-
 
 Chap. IX.] INJUKY FKOM UNCSUAL CAUSE. 141 
 
 -eration would be the height of the wires above the track, involv- 
 ing the safety of those whose duty required them to pass under, 
 on the tops of freight trains. Where all connected with the rail- 
 road and telegraph service, including the "tall brakeman," unite in 
 saying that it never occurred to any of them, before the day of 
 the accident, that there was danger, or that contact with the wire 
 was ordinarily possible, and on that day, by a combination of 
 extraordinary circumstances not at all satisfactorily explained, the 
 tall brakeman came unexpectedly in contact with the wire, 
 with fatal result to the decedent, the brakeman was not in fault. 
 He relied upon tne fact that he passed under the wire daily, and 
 he was therefore fully justified in supposing that he could pass 
 under safely again. And it cannot be said that the company — 
 notwithstanding this brakeman and others supposed the wire to 
 be above the possibility of contact — must have anticipated, not only 
 the remarkable conjunction of the depressed wire with the tall 
 brakeman erect upon the high train, but that it must have looked 
 beyond the brakeman thus situated, and anticipated that the wire 
 might have been knocked down, which in itself would ordinarily 
 have hurt no one, and that such combination of circumstances 
 would then follow as might result in serious injury to someone. 
 These cases, to a greater or less extent at least, go upon the theory 
 that persons who are charged with a duty in relation to a particular 
 matter or thing have a right to rely upon the sufficiency of a 
 structure or contrivance such as is in common use for the purpose, 
 and which has been, in fact, safely used and under such a variety 
 of conditions as to demonstrate its fitness for the purpose. When 
 a structure or appliance such as is in general use has uniformly 
 answered the purpose for which it was designed and used, under 
 every condition supposed to be possible in the business, it cannot 
 in reason be said that a person has not acted with ordinary pru- 
 dence and sagacity in not anticipating an accident which afterwards 
 happens in the use of the thing, notwithstanding it continued sub- 
 stantially in the same condition all the time. Of course if the 
 structure or thing was inherently dangerous, or had become in- 
 trinsically insecure, and the person who was responsible for its 
 safety had actual or constructive notice of its condition, the fact 
 that it had been used before without injury would not exempt
 
 142 IMPOSED DUTIES, PERSONAL. [Part L 
 
 the person so responsible from liabilitj^, when an accident hap- 
 pened on account of its defective condition. So, also, if the thing 
 which occasioned the accident was inherently dangerous or inse- 
 cure, the fact that no such occurrence had ever taken place before 
 would not be conclusive evidence that due caution was observed. 
 Extraordinary and unusual occurrences are not to be as readily 
 anticipated, under any circumstances, as are those which frequently 
 happen. Where an event takes place, the real cause of which 
 cannot be traced, or is at least not apparent, it ordinarily belongs 
 to that class of occurrences which are designated as purely acci- 
 dental; and in a case where the plaintiff asserts negligence, he 
 must show enough to exclude the case from the class of accidental 
 occurrences. 
 
 In Sjogren v. Hall^ 53 Mich. 274, the plaintiff, by some accident 
 not explained, lost his leg by being caught in a wheel connected 
 with the operation of a sawmill in which he was employed. The 
 plaintiff claimed defendant was negligent in leaving the wheel un- 
 covered, and that at a very small expense the accident could have 
 been prevented. Cooley, J.^ delivering the opinion of the court, 
 said: "If the accident which occurred was one at all likely to 
 happen, — if it was a probable consequence of a person working 
 about the wheel that he would be caught in it, as the plaintiff was, 
 — there would be ground for pressing this argument. But the 
 accident cannot be said to be one which even a prudent man would 
 'have been likely to anticipate. So far as there is a duty resting 
 upon the proprietor in any of these cases, it is a duty to guard 
 against probable dangers; it does not go to the extent of requiring 
 him to make accidental injuries impossible.'" So in the case of 
 Allegheny v. ZimTnerman^ 95 Pa. 287, which was a suit to re- 
 cover for injuries sustained by the falling of a liberty-pole which 
 had been erected in the street, it was held, following the general 
 rule, that one is answerable in damages for the consequences of 
 his faults only so far as they are natural and proximate, and may 
 therefore have been foreseen by ordinary forecast, and not for those 
 arising from a conjunction of his own faults with circumstances of 
 an extraordinary nature." 
 
 iSee Riclmrds v. Bough, 53 Mich. 213; Mitchell v. Chicago & O. T. B. Co. 
 
 51 Mich. 236. 
 "See Fairbanks v. Kerr, 70 Pa. 86; Baker v. Fehr, 97 Pa. 72; Hoag v. Lake 
 
 Shore & M. 8. B. Co. 85 Pa. 293.
 
 Chap. IX.] INJURY FROM UNUSUAL CAUSE. 145 
 
 But if the act be one of negh'gence, which may be expected 
 sometime to result in injury to someone, although it be long de- 
 layed, the fact that when the reasonably expected result follows, it 
 does so under extraordinary circumstances, will not relieve the 
 negligent act. The injury need not even be anticipated in the 
 particular case. It is sufficient to create liability that such an in- 
 jury might be expected eventually from a series of similar acts of 
 negligent omission or commission.' Thus in Doyle v. Chicago^ 
 St. P.&K.C. R. Co., 77 Iowa, 607, 4 L. K A. 420, it was ruled 
 that it is negligence for the servants of a railroad company to 
 leave a coupling pin unsecured upon the platform of a car in mo- 
 tion ; and the companj'' is liable for injuries inflicted upon another 
 of its employes engaged in r6j)airing a bridge, by reason of the 
 pin falling from the platform and being hurled against him by 
 the car wheels while the train is passing him; and the fact that jusst 
 such an accident is unusual, unexpected, or even unheard of, will 
 not excuse the negligence which causes it ; and in an action to 
 recover damages for injuries resulting from such negligence, evi- 
 dence upon the question whether or not the particular accident 
 would be expected to result from the negligent act, is inadmissi- 
 ble. And evidence that coupling pins are usually fastened, not to 
 prevent their doing damage if not fastened, but to have them at 
 hand when wanted, is inadmissible, as the motive with which due 
 care is exercised cannot control the effect of its absence. "While 
 it may be true that the accident, in the precise form and with the 
 precise attending circumstances which resulted in plaintiif's injury, 
 could not have been expected to have happened from the falling 
 of the pin from the car upon the track, as the reason or imagina- 
 tion is unable to determine just the effect of an obstruction upon 
 the track of a railroad; and the result maybe unusual, unexpected, 
 indeed, a surprise to the most experienced — never before heard of 
 by anyone — yet the act of putting the obstruction on the track is 
 none the less negligent, for it threatens danger in many direc- 
 tions, and is liable to produce many familiar results which 
 would cause injury. Now, surely, if it causes an injury in any 
 way that may be expected — if the results have before been seen — 
 it cannot be said not to be negligent because the method was before 
 
 ^Clifford V. Denver, 8. P. <& P. R. Co. 9 Colo. 333.
 
 144: IMPOSED DUTIES, PERSONAL. [Part I. 
 
 unheard of, and not within the observation of anyone, or even not 
 anticipated in the exercise of reason or imagination. Because the 
 negligence produced an effect never before observed, it cannot 
 therefore be said that it was the exercise of car^. Where the de- 
 fendant ascended in a balloon, which descended a short distance 
 from the place of ascent into plaintiff's garden, and defendant, be- 
 ing entangled, called for help, whereupon a crowd of people broke 
 through plaintiff's garden, and beat down and destroyed his vegeta- 
 bles and flowers, it was ruled that, although ascending in a balloon 
 was not an unlawful act, yet,under the circumstances, defendant was 
 answerable for the damage done to the garden of plaintiff.' In 
 the old reported case where defendant threw a lighted squib into 
 s, market place where there was a large assembly of people and it 
 was thrown from one stand to another to avoid injury, and finally 
 struck and put out the eye of plaintiff, the defendant was declared 
 liable who first threw the squib." 
 
 When damage is done to personal property, or even to a person 
 by a collision, either upon land or at sea, there must be negligence 
 in the party doing the damage, to render him legally responsible; 
 nor is this confined to cases of collision, for there are many cases 
 in which proof of negligence is essential. The law does not make 
 anyone an insurer against accidents in the use of a highway ;' as, 
 for instance, when an unruly horse gets in a foot-path or public 
 street and kills a passenger.* 
 
 Where the roadway was in first-rate condition for its entire 
 width of thirty feet, and was bounded by a curbstone eiglit inches 
 high and by a sidewalk ten feet wide, outside of which was an em- 
 bankment twelve feet deep, not guarded by a fence or railing, where 
 no accident had before happened, although it had been in that con- 
 dition ten years, and plaintiff's horse, being frightened by a bicycle, 
 left the roadway and dragged his wagon over the embankment, 
 thereby injuring the plaintiff, it was held that the failure to place 
 a railing or fence to the embankment was not negligence, and that 
 it was error to submit the question to the jury/ 
 
 ^Quille V. Swan, 19 Johns. 381. 
 
 ^Scoit V. Shepherd, 2 W. Bl. 893. 
 
 ^Collins V. Leafei/, 124 Pa. 203. 
 
 ^Eammack v. White, 11 C. B. N. S. 588, 31 L. J. N. S. C. P. 129. See Her- 
 
 rick V. Sullivan, 120 Mass. 576; Tupper v. Clark, 43 Vt. 200. 
 ^Euhbell V. Tankers, 104 N. Y. 434, 6 Cent. Rep. 499.
 
 ■Obap. IX.] INJURY FKOE UNUSUAL CAUSE. 145 
 
 Traffic on the liighvvays, whether by hmd or sea, cannot be con- 
 ducted without exposing those whose persons or property are near 
 it to some inevitable risk; and that being so, those who go on a 
 highway, or have their property adjacent to it, may well be lield 
 to do so subject to thoir taking upon themselves the risk of injury 
 from that inevitable danger, where carelessness cannot be charged 
 upon anyone ; and persons who, by the license of tlie owner, pass 
 near to warehouses where goods are being raised or lowered, 
 •certainly do so subject to the inevitable risk of accident. In 
 jieither case can they recover, without proof of want of care or 
 skill occasioning the accident.' 
 
 The rule is that, in order that liability shall attach for an injury 
 •occasioned by something not inherently dangerous and defectiv^e, 
 which is found upon the ground of, or in use by, one who is under 
 a qualified obligation to the injured person, it must be sliown 
 either that the defendant knew, or tliat, by the exercise of such 
 reasonable skill, vigilance and sagacity as are ordinarily possessed 
 and employed by persons experienced in the particular business to 
 which the thing pertains, he should have known, of its defective 
 and dangerous condition, and that the natural and probable conse- 
 •quence of its use would be to produce injury to someone." The 
 rule thus stated is entirely in accord with the liability imposed in 
 those cases in which it appeared that persons passing along public 
 streets or highways had sustained injury by being struck by dan- 
 gerous substances thrown, or by the falling of objects from build- 
 ings into public streets. It has been held that, from the happening 
 of such an accident, in the absence of explanatory circumstances, 
 negligence will be presumed. These cases go upon the theory 
 that the injurious thing was inherently and intrinsically danger- 
 ous, hurtful and insecure, and that it was hence necessary for the 
 
 ^Fletcher v. Rylands, L. R. 1 Exch. 286 {Mr. Justice Blackburn). 
 
 ^Goodsell V. Taijlor, 41 Minn. 207, 4 L. R. A. 673; Marshall v. Welwood 38 
 N. J. L. 339; Wabash, iSt. L. & P. R. Go. v. Locke, 112 Ind. 404, 11 West. 
 Rep. 877; Norfolk & W. R. Co. v. Jackson (Ya. Nov. 22, 1888) 8 S. E. 
 Rep. 370; SouthWentVa. Imp. Co. v. Andreio (Va. July 4, 1889) 9 S. E. 
 Rep. 1015; Louisville & N. R. Co. v. Ball, 87 Ala. 708; Arabello v. San 
 Antonio & A. P. R. Co.(Tex. May 14, 1889) 11 S. W. Rep. 913; Bogenschutz 
 V. Smith, 84 Ky. 330; Louisville, N. A. & C. R. Co. v. Sandford, 117 Ind. 
 265; Georgia Pac. R. Co. v. Propst, 85 Ala. 203; Aldrich v. Midland Blast 
 Furnace Co. 78 Mo. 559; Hull v. Missouri Pac. R. Co. 74 Mo. 298- Coluni- 
 ■bus & J. C. R. Co. V. Arnold, 31 Ind. 174. 
 
 10
 
 146 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 defendant to sliow that lie was exercising reasonable care at tlie 
 time of the accident.^ 
 
 Perhaps the proposition may be' more accurately stated thnsr 
 Traffic is lawful, and one engaged in a lawful pursuit is not liable 
 for injury he may, without negligence, inflict upon others. The 
 usual principle is that blame must be imj)utable as a ground of 
 responsibility for damage occurring from a lawful act." 
 
 Tims, when a traveler on the highway was struck by a falling 
 door of a moving freight car, no knowledge of a defect in securing 
 it being actually brought home to the railroad company, nor lapse 
 of time during which it had continued being shown, there is nO' 
 liability.^ 
 
 ]Sror can there be any liability for injury to an employe of a. 
 railroad company from a mail bag thrown by a post-office agent 
 from a mail car because of the failure of thj company to notify 
 him that iL might be thrown in an unusual place.'' 
 
 But the fact that a particular thing or a piece of machinery has 
 been used with safety for years and is not obviously dangerous, 
 will not, where the lives of others may depend upon its safety, 
 justify a presumption that it will continue safe and that its use 
 may be continued without examining it to ascertain if its safety 
 may not have been impaired from wear.^ 
 
 The mere fact of an injury happening is not evidence of negli- 
 gence.* 
 
 Where an injury happens from a neglect of duty it must not 
 only appear that it happened, but the surrounding circumstances 
 must be such as to raise the presumption that it happened in con- 
 sequence of a failure of duty on the part of the defendant towards- 
 the plaintiff.'' 
 
 •^Mullen V. St. John, 57 N. Y. 567; Byrne v. Boadle, 2 Hurl. & C. 723. 
 
 ^Marshall v. Wehcood, 38 N. J. L. 339. 
 
 ^Case V. Chicago, R. I. & P. R. Co. 64 Iowa, 762. See Collyerv. Pennsylvania 
 
 R. Co. 49 N. J. L. 59, 4 Cent. Hep. 568; Lyons v. Rosenthal, 11 Hun, 46. 
 '^MusUr V. Chicago, M. & St. P. R. Co. 61 Wis. 325. 
 ^Ooodsell V. Tmjlor, 41 Minn. 207, 4 L. R. A. 678. 
 ^Haminack v. White, 11 0. B. N. S. 53S; Bird v. Great Northern R. Co. 
 
 28 L. J. N. S. Exch. 3; Welfare v. London & B. R. Co. L. R. 4 Q. B. 
 
 698; Smith v. Great Eastern R. Go. L. R. 2 C. P. 10; Baltimore Elexaior 
 
 Co. V. Neal, 65 Md. 438, 3 Cent. Rep. 856. 
 'Article, Res Ipsa Loquitur, 10 Chicago L. J. 261.
 
 Chap. IX.] PKESUMPTION OF NEGLIGENCE. 147 
 
 The fact of killing or injur}', in tlie absence of any statutory 
 provision to that elfect, does not constitute of itself any presump- 
 tion of negligence.' 
 
 Section u.—The Cause of an Injury may Create a 
 Presumption of JVegligence in the Person Set- 
 ting It in Motion. 
 
 An injury may, however, be from such causes or of such a 
 character as to raise a presumption of negligence; as, where the 
 particular thing causing the injury has been shown to be under 
 the management of the defendant or his servants, and the casualty 
 is such as in the ordinary course of things does not happen if 
 those who have the management use proper care, it affords rea- 
 sonable evidence, in the absence of explanation, that the casualty 
 arose from want of care.* 
 
 It is a maxim of the common law that the owner of the soil has 
 absolute dominion over the same indefinitely, above and below the 
 surface ; and that whatever damages to others he may occasion 
 by his rightful command over his own soil is damnum absque in- 
 juria.^ 
 
 ^Little Rock & Ft. S. R. Co. v. Benson, 39 Ark. 413; LMe Rock & Ft. 8 
 R. Go. V. Holland, 40 Ark. 336; Chicago & M. R. Co. v. Patchin, 16 111. 
 198; Great Wtstern R. Co. v. Morthland, 30 111. 451; Indianapolis & C. R. 
 Co. V. Means, 14 Ind. 30; Schneir v. Chicago, R. 1. & P. R. Co. 40 
 Iowa, 337; Flattes v. Chicago, R. I. & P. R. Co. 35 Iowa, 191; Kentucky 
 Cent. R. Co. v. Talbot, 78 Ky. 621 ; WJdttier v. Chicuqo, M. & St. P. R. Co. 
 26 Minn. 484; New Orleans, J. & G. N. R. Co. v. Enochs, 42 Miss. 603: 
 Mobile dk 0. R. Co. v. Hudson, 50 Miss. 572; Brown v. Hannibal & St. J 
 R. Co. 33 Mo. 309; Walsh v. Virginia & T. R. Co. 8 Nev. Ill; Scott v. 
 Wilmington & R. R. Co. 4 Jones, L. 432; Lyndsay v. Connecticut & P. 
 R. R. Co. 27 Vt. 643. See, however, Roberts v. Johnson, 58 N. Y. 613; 
 Memphis & 0. R. Packet Co. v. McCool, 83 Ind. 392; Delaware, L. & W. 
 R. Co. V. Napheys, 90 Pa. 135; Quinn v. South Carolina R. Co. 29 S C 
 381, 1 L. R. A. 682. 
 
 ^ Scott V. London & St. K. Docks Co. 3 Hurl. & G. 596; Edgerton v. New 
 York & H. R. Co. 39 N. Y. 227; Mullen v. St. John, 57 N. Y. 567; Lyons 
 V. Rosenthal, 11 Hun, 46; Breen v. New York C. & H. R. R. Co. 109 N.Y 
 297, 11 Cent. Rep. 891; Holbrook v. Utica & 8. R. Co. 12 N. y. 236; 
 Kirst V. Milwaukee, L. S. & W. R. Co. 46 Wis. 489; Byrne v. Boadle, 2 
 Hurl. & C. 722; Briggs v. Olson, 4 Hurl. & C. 403; Kearney v, London, 
 B. & 8. G. R. Co. L. R. 5 Q. B. 411, L. R. 6 Q. B. 759. 
 
 ^Rawstron v. Taylor, 11 Exch. S69; Gannon v. Hargadon, 10 Allen, 106 
 Luther v. Winnisimmet Co. 9 Cush. 171; Flagg v. Worcester, 13 Gray 
 601; Dickinson v. Worcester, 7 Allen, 19. To the same effect are Frank 
 lin V. Fisk, 13 Allen, 211; Greeley v. Maine Cent. R. Co. 53 Me. 200 
 Bowlsby V. Speer, 31 N. J. L. 351; Pettigrew v. Evansville, 25 Wis. 223, 3
 
 148 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 Where the maxim sic utere tuo ut alienum non Icedasis applied 
 to land, it is subject to a certain modification, it being necessary 
 for the plaintiff to show, not only that he has sustained damage, 
 but that the defendant has caused it by going beyond what is nec- 
 essary in order to enable him to have the natural use of his own 
 land.' 
 
 Every man is entitled to the ordinary and natural use and enjoy- 
 ment of his property ; he may cut down the forest trees, and clear 
 and cultivate his land, although in so doing he may dry up the 
 source of his neighbor's springs, or remove the natural barrier 
 against wind and storm,^ 
 
 If a person erects a building upon a city street or an ordinary 
 highway, he is under legal obligations to take reasonable care that 
 it shall not fall into the street and injure persons lawfully there; 
 and while it cannot be affirmed that he is liable for any injury 
 that may occur, whether by inevitable accident or the wrongful 
 act of others, it is not to be disputed that he is liable for the want 
 of reasonable care.' 
 
 It is held in I^eg. v. Watts, 1 Salk. 357, that a house likely to 
 fall is a nuisance, for w^hich an indictment lies against the occu- 
 pier. Church of the Ascension, v. BucTchart, 3 Hill, 193, shows 
 that it is the duty of the owner of a ruinous building to prevent 
 its walls from falling;* and as buildings properly constructed do 
 not fall without adequate cause, if there be no tempest prevailing, 
 and no external violence of any kind, the fair presumption is that 
 a fall occurs through adequate causes, such as the ruinous condi- 
 tion of the building, which could scarcely have escaped the obser- 
 vation of the owner. The mind is thus led to a presumption of 
 
 Am. Rep. 50; Eoyt v. Hudson, 27 Wis. 656, 9 Am. Rep. 473; O'Connor 
 
 Y. Fond du Lac, A. & P. B. Co. 52 Wis. 526, 38 Am. Rep. 753; Taylor v. 
 
 Fickas, 64 Ind. 167, 31 Am. Rep. 114; Cairo & V. R. Co. v. Stevens, 73 
 
 Ind. 278, 38 Am. Rep. 139; Oibbs v. Williams, 25 Kan. 214, 37 Am. Rep. 
 
 241; BarUey v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519; Acton v. Blun- 
 
 dell, 12 Mees. & W. 324; Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93; 
 
 Butler V. Peck, 16 Ohio St. 335. 
 ^West Cumberland 1. & 8. Co. v. Eenyon, L. R. 11 Ch. Div. 782; Penn- 
 
 syhania Coal Co. v. Sanderson, 113 Pa. 126, 4 Cent. Rep. 481. 
 '^Pennsylvania Goal Co. v. Sanderson, 113 Pa. 126, 4 Cent. Rep. 480. 
 2 Merrick, J., in Eirby v. Boylston Market Asso. 14 Gray, 249; Lorcell v. 
 
 Spaulding, 4 Cusli. 277; Oakham v. Ilolbrouk, 11 Cush. 299; Davenport y. 
 
 Buckman, 10 Bosw. 20, 37 N. Y. 568. 
 *See Simmons v. Elliott, Montreal L. Rep. 5 Super. Ct. 182.
 
 Chap. IX.] PRESUMPTION OF NEGLIGENCE. 149 
 
 negligence on his part, which may of conrse be rebutted. In the 
 absence of explanatory evidence, negligence may be presumed.' 
 There is no doubt but that the owner is responsible for his negli- 
 gence either in constructing or upholding a freehold;' but the 
 presumption of negligence from an injury caused by the fall of a 
 building may be rebutted by evidence that the fall was caused by 
 another, and for the negligent use of it by others the owner can- 
 not be made liable. He has met the requirements of the law 
 when each and every part of the building is properly and securely 
 adapted to its particular use. In Scullin v. Dolan, 4 Daly, 1G3, 
 plaintiff was injured while passing along a public street by the 
 falling of a stone coping from defendant's chinrincy, but, it appear- 
 ing that the chimney was secure and fit for the purpose for which 
 it was intended, and it being shown that the stone coping was ac- 
 cidentally thrown off from the chimney by a third person while 
 in the improper and unauthorized use of it, it was ruled that de- 
 fendant was not liable for neglect. But the owner and occupier 
 of land, who, not parting with possession, has given another a 
 license to come upon his property and do certain acts, in doing 
 which an actual nuisance is created, is presumably equally liable 
 for damages proceeding therefrom with the licensee, who actually 
 created the nuisance.' 
 
 The case of White v. Jameson, L. E. 18 Eq. 303, even if full 
 effect be given to it, does not go to the extent, however, of hold- 
 ing a land owner liable for a transitory act of a third person, the 
 scope of which certainly cannot be enlarged by calling it a public 
 nuisance, and which has in it no element of continuing use of the 
 real estate.* 
 
 But the owner of a building to the chimney of which a gas 
 company has, without the owner's consent, so affixed a wire as to 
 render the chimney unsafe and ultimately caused it to fall upon a 
 passer-by, may be liable for the damages so caused by reason of 
 
 ^Mullen V. St. John, 57 N. Y. 5G7. 
 
 ^Eakin v. Broicn, 1 E. D. Smith, 36. 
 
 ^ White V. Jamexon, L. K 18 Eq. 303; Pollock, Torts, 351; 1 Addison, Torts 
 (Wood's ed.) 386; Laugher v. Pointer, 5 Barn. & C. 547. 560, Littledale, 
 J.; Quarman v. Burnett, 6 Mees. & W. 499, Park, B.; Rich v. Bditter- 
 Jield, 4 0. B. 783. 802. Compare Cuff v. Jfewark & N. Y. R. Co. 35 N. J. 
 L. 17. 
 
 *Lincoln v. Boston, 148 Mass. 578, 3 L. R. A. 257. See Butterfield v. Boston, 
 148 Mass. 544; Com. v. Patterson, 138 Mass. 498, 500.
 
 150 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 his negligence in permitting it to continue in sucli dangerous con- 
 dition for some time.' 
 
 There are two distinct grounds upon which the owner of real 
 estate may be held liable to one who is injured through a pitfall, 
 a hidden danger or an obstruction upon his property. Where the 
 danger lies near the pathway or a public highway, so that a trav- 
 eler may be liable to stray upon it, the owner of the real estate is 
 liable for maintaining a nuisance." Where the danger is not so 
 situated, the owner may render himself liable to a licensee by 
 failure to disclose hidden dangers.' So the owner of real estate 
 may render himself liable for any injury suffered by a licensee by 
 reason of any change made in the condition of the premises with- 
 out informing the party who has permission to enter upon the 
 premises.* So if he enter under a contract, as where a gas fitter 
 sent to a building fell through an open hatchway.^ 
 
 In the form of declaration suggested by Willes, «/!, in Corhy v. 
 Hill, 4 C. B. N. S. 556, 567, there is no mention of allurement or 
 invitation or trap as a ground for the liability. The facts sug- 
 gested in that form are " that plaintiff had a license to go on the 
 road ; that he was in consequence accustomed and likely to pass 
 along it ; tliat defendant knew of that custom and probability ; 
 that defendant negligently placed slats in such a manner as to be 
 likely to prove dangerous to persons traveling on the road ; that 
 plaintiff traveled along the road, being, by reason of his license, 
 lawfully on the road, and that he was injured by the obstruction. 
 
 A customer entering a merchant's premises upon business does 
 so in pursuance of an invitation, and has a right to rely upon pre- 
 sumed security from danger.* The same rule applies to a ferry- 
 
 ^Oray v. Boston Oas Light Co. 114 Mass. 149. 
 
 ^Barnes v. Ward, 9 C. B. 392; Iloumell v. Smyth, 1 C. B. N. S. 731; Knight 
 
 V. Abert, 6 Pa. 472; Blyth v. Topham, Cro. Jac. 158. 
 ^Sonthcoiev. Stanley, 1 Hurl. & N. 247; Bolchv. Smith, 7 Hurl. & N. 736; 
 
 Pickard v. Smith, 10 C. B. N. S. 470; Seymour v. Maddux, 16 Q. B. 326; 
 
 White V. France, L. R. 2 0. P. Div. 308; JV^oi-th Eastern R. Co. v. Wanless, 
 
 L. R. 7 H. L. 12. 
 *Oautret v. Egerton, L. R. 2 C. P. 371; Coriy v. Hill, 4 C. B. N. S. 556; 
 
 Bennett v. Louisville & N. E. Co. 102 U. S. 677, 26 L. ed. 235. 
 ''Chapman v. Bothwell, El. Bl. & El. 168. 
 ^Chapman v. Bothwell, El. Bl. & El. 168;" Holmes v. North Eastern B. Co. 
 
 L. R. 4 Exch. 254; Indermaur v. Dames, L. R. 1 C. P. 274, L. R. 2 C. P. 
 
 311- Siceeny v. Old Colony B. Co. 10 Allen, 368; McKaney. Michigan Cent. 
 
 B. Co. 51 Mich. 601.
 
 Chap. IX.] PRESUMPTION OF NEGLIGENCE. 151 
 
 man,' tliongh perliaps the ordinary rule governing carriers would 
 be properly applied in such case. 
 
 The law seems to be that the injury to one person by another's 
 use of adjoining premises being clear, the burden is on the latter 
 to disprove negligence and consequent liability.' 
 
 One whose house is burned through his neighbor keeping a 
 hay rick on the extremity of his land in such a condition that it 
 burned spontaneously may recover the loss." 
 
 In Marshall v. Welv:ood^ 38 N. J. L. 339, the case of Tenant v. 
 Golding, 1 Salk. 21, 360, 2 Ld. Eaym. 1089, 6 Mod. 311, was re- 
 ferred as presenting merely the question of whether a land owner 
 is bound, in favor of his neighbor, to keep the wall of his privy 
 in repair, and the court held that he was, and that he was respon- 
 sible if, for want of such reparation, the filth escaped on the ad- 
 joining land. It was said that no question was mooted as to his 
 liability, in case the privy had been constructed with care and 
 skill, with a view to prevent the escape of the contents, and had 
 been kept in a state of repair. Not to repair a receptacle of this 
 kind when it was in want of repairs was said to be in itself a 
 prima facie case of negligence, and this was thought to be all that 
 the court decided in the case. A consideration was also urged, 
 both with respect to that case, and the cases of injurious fumes 
 from alkali works, against the owners of which several actions 
 were said to have been brought for damages alleged to have been 
 caused by the chlorine fumes escaping from their works (which 
 works the cases showed had been erected upon the best scientific 
 principles), that the cases stand somewhat by themselves, in that 
 the things, in their nature, partake largely of the character of a 
 nuisance. Take the alkali works as an example. Placed in a 
 town under ordinary circumstances, the}' would be a nuisance. 
 When the attempt is made by scientific methods to prevent the 
 ■escape of fumes so as to attempt to legalize that which is illegal, 
 the consequence is that, failing in the attempt, the nuisance re- 
 mains. But it would be a questionable deduction to assert that a 
 man is in law an insurer that the acts which he does, such acts 
 
 1 Willowihby V. Horridge, 12 C. B. 743. 
 
 ^Reinhardt v. Mentasti, L. R. 42 Cb. Div. 085, 40 Alb. L. J. 490. 
 
 * Vaughan v. Menlove, 3 Bing. N. C. 468, 7 Car. & P. 525.
 
 152 IMPOSED DUTIES, PERSONAL. [Part T. 
 
 being lawful and done with care, shall not injuriously affect others. 
 The decisions stand rather opposed and as exceptions to, and not 
 traced to, principles which must be considered much more general 
 in their operation and elementary in their nature. The common 
 rule, quite constitutional in its character, is that, in order to sus- 
 tain an action for tort, the damage complained of must have come 
 from a wrongful act. 
 
 But every owner of property, however unqualified and absolute 
 his title, holds it subject to an implied liability that the use there- 
 of shall not be injurious to the public. Eights of property, like 
 social and conventional rights, are held subject to such reasonable 
 limitations in regard to their enjoyment as shall prevent them 
 from being injurious to the rights of others, and to such reason- 
 able restraint and regulations to be established bylaw as the Legis- 
 lature may ordain and establish, and any violation of these regula- 
 tions causing injury creates a presumption of negligence. It is on 
 this principle, applicable alike to all kinds of property, generally 
 denominated " the police power of the State," that the authority 
 is found for such control over individuals and corporations and 
 over their property as is necessary to insure safety to all and pro- 
 mote the public convenience and welfare.* 
 
 A nuisance is distinguishable from trespass, since it consists in 
 the use of a public place, or one's own property, in such a manner 
 as to cause injury to property, or the right or interest or person 
 of another. It is the injury, annoyance, inconvenience and dis- 
 comfort thus occasioned that the law regards, not the particular 
 business, trade or occupation from which these result. A lawful 
 as well as unlawful business may be carried on in a place or in a 
 manner so as to prove a nuisance." The law in this respect looks 
 with an impartial eye upon all avocations and professions. How- 
 ever useful, ancient or necessary the business may be, if it is so 
 conducted as to occasion serious annoyance, injury or inconven- 
 ience, the injured party has a remedy. Though the nuisance be 
 
 ^Sharp V. Wfiiteside, 19 Fed. Rep. 156. 
 
 ^Cronin v. People, 82 N. Y. 318; Bowling Oreen v. Carson, 10 Bush, 64; 
 Ash V. People, 11 Mich. 347; St. Louis v. Weber, 44 Mo. 547; Winnsboro 
 V. Smart, 11 Rich. L. 551; Commonwealth v. Stodder, 2 Gush. 562; Re 
 Jacobs, 98 N. Y. 98; Milwaukee v. Gross, 31 Wis. 241; Laclaire v. Damn- 
 port, 13 Iowa, 210; New Orleans v. Stafford, 27 La. Ann. 417, 21 Am. 
 Rep. 563.
 
 Chap. IX.] PRESUMPTION OF NEGLIGENCE. 153 
 
 public, rendering the guilty party liable to indictment, the sufferer 
 may recover compensation in a civil suit upon proving it specially 
 a damage to himself.' 
 
 It may be said generally that a land owner cannot perform any 
 work on his land which may have the effect of depriving his 
 neighbor of the enjoyment of his own land, or which may damage 
 the latter." 
 
 The use of a basement or supplemental kitchen of a hotel for 
 heating water and cooking pastry, although a reasonable use for 
 hotel purposes, will be enjoined where it so raises the temperature 
 of a wine cellar on adjoining premises, separated by a party-wall,, 
 as to make it unlit for storing wine.' 
 
 Under the law of nuisance, it was held in McKeon v. See, 4 
 Eobt. 449, 51 N. Y. 300, that the defendant had no right to op- 
 erate a steam engine and other machinery upon his premises so as 
 to cause the vibration and shaking of plaintiff's adjoining buildings- 
 to such an extent as to endanger and injure them. The ground 
 of this decision was that in the mode in which they were operated, 
 the engine and machinery were a nuisance, and the case must be 
 limited to the facts before the court, and cannot be fairly ex- 
 tended to create a liability where the machinery, in its use, did 
 not constitute a nuisance. 
 
 In the case of Marshall v. Welwood, 38 N, J. L. 339, it was 
 submitted to the jury for a finding, whether the owner of a steam 
 boiler which he kept to be used on his own premises, and which 
 exploded, doing damage, was guilty of negligence which caused 
 the explosion, or whether the explosion was the product of pure 
 accident. 
 
 There is a public duty to exercise great care and skill incum- 
 bent on those having charge of instruments which, if mismanaged, 
 are highly dangerous to the lives and persons of men who happen 
 to be in their neighborhood ; and for the nonperformance of such- 
 duties a person specially injured thereby is entitled to sue. One- 
 whose property is injured by the bursting of a boiler on adjacent 
 premises, in consequence of its mismanagement, has a right of 
 
 ^Cole V. Sprowl, 35 Me. 161; Norcross v. Thorns, 51 Me. 503; Shipley v. Fifty 
 
 Asso. 101 Mass. 251. 
 ^Wilson V. Great Southern Teleph. & Teleg. Co. 41 La. Ann." 1041. 
 *Beinhardt v. Mentasti, L. R. 42 Ch. Div. 685, 40 Alb. L. J. 490.
 
 154 IMPOSED DcrriES, PERSONAL. [Part I. 
 
 «,ction tlierefor against the parties whose want of care and skill 
 •caused the injury; and an insurance company which co-operates 
 actively with the owner of a steam-boiler which it has insured, in 
 its management, is responsible for damages caused by want of care 
 and skill in the management, as not only the owner of a dangerous 
 machine, but all persons, whether servants or volunteers, who par- 
 ticipate in its management, are liable for the immediate and ob- 
 vious damage caused by such mismanagement.' 
 
 The fact that an operation which causes the injurious substance 
 is authorized by statute, will not constitute a defense." 
 
 In Ball V. Nye, 99 Mass. 582, it was held to be the duty of the 
 land owner, in constructing a vault upon his premises, to take care 
 that the contents thereof should not percolate through the cellar 
 and wall of the adjoining proprietor, and where it did so habitually, 
 and to the knowledge of the party who maintained the vault, such 
 percolations were evidence of negligence upon which the plaintiff 
 was entitled to a verdict. 
 
 In Gorham v. Gross, 125 Mass. 232, the rule was thus stated 
 "by Gray, Ch. J.: " Where a wall, built by one person on his own 
 land, falls upon the land of his neighbor, the owner has the same 
 duty to keep on his own land the house or the wall built thereon 
 as the filth in his cess-pools, or the water in his reservoir and snow 
 upon his roof. His duty is, in the words of Baron Park, ' to 
 keep it in such a state that his neighbor may not be injured by its 
 fall.' "' He considered it unnecessary to decide whether it is more 
 .accurate to say it is not a question of negligence, and that the de- 
 fendant is liable, even in the event of latent defect, or to say that 
 the fall, while in the absence of proof of inevitable accident, or of 
 the wrongful act of third persons, is sufficient evidence of negli- 
 gence. 
 
 In Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, the ma- 
 jority of the court overruled the decision in Sanderson v. Penn- 
 ■sylvania Coal Co., 86 Pa. 401, and reached the conclusion that, 
 
 ' Van Winkle v. American Steam-Boiler Ins. Co. (N. J. Feb. 25, 1890) 19 Atl. 
 Rep. 473. 
 
 ^Pottstoion Gas Co. v. Murphy, 39 Pa. 257; Beckley v. SkroTi, 19 Mo. App. 
 75; Chapman v. Rochester, 110 N. Y. 273, 1 L. R. A. 296; Perrine v. Tay- 
 lor, 43 N. J. Eq. 128; Avans v. Wilmington & W. R. Co. 96 N. C. 45. 
 
 ^Citing Chauiftler v. Robinson, 4 Exch. 163; larry v. Ashton, L. R. 1 Q. B. 
 Div. 314; Bower v. Peate, L. R, 1 Q. B. Div. 331.
 
 Chap. IX.] PRESUMPTION OF NEGLIGENCE. 155 
 
 where coal lands were being operated in the ordinary manner, one 
 througli whose land a stream of water passed had no cause of ac- 
 tion against the owners of a mine, because the water had been 
 affected in quality or quantity, tlie mine owner introducing noth- 
 ing into the water to corrupt it, the impurities being from natural 
 and not artificial causes, and the result being a mere personal in- 
 jury and not affecting the general health and well-being of the 
 connnunity, and the stream forming the natural draitiage of the 
 land. But see Kinnaird v. Standard Oil Go. (Ky. Jan. ^5, ISUO), 
 7 L. E. A. 451, where it was held that there is a manifest distinc- 
 tion between the right of the owner of land to use the underground 
 water upon it that originates from percolation and tlie wrong in 
 contaminating it, so as to injure or destroy the water, when pass- 
 ing the adjoining land of his neighbor.' 
 
 The rule of law also is well settled in actions where the right of 
 recovery is claimed as resting both on an imposed obligation and 
 •on contract, that when an injury happens to a passenger on a rail- 
 road by reason of the defective condition of appliances, it is prima 
 facie evidence, from which the jury may infer negligence.'' 
 
 Other examples are where a railway embankment sinks away ;' 
 where injury is caused by car being thrown off the track ; * by a 
 •collision of trains* or street cars ; ' by the destruction of a rail- 
 way bridge by a storm ; ^ by accident ; * by breaking down of a 
 bed in sleeping car;' by explosion of a boiler; "* by the breaking 
 
 ' See also Ottawa Gas Light C. Co. v. Qraliava, 28 111. 74; Pottstown Oas Co. v. 
 Murphy, 39 Pa. 257; Columbus Oas Co. v. Freeland, 12 Ohio St. 392. 
 
 ^Baltimore & 0. R. Co. v. Noell, 32 Gratt. 394; Sawyer v. Hannibal d: St. 
 J. R. Co. 37 Mo. 240; Curtis v. Rochester & S. R. Go. 18 N. Y. 534. 
 
 ^Great Western R. Co. v. Braid, 1 Moore, P. C. (N. S.) 101; Philadelphia & 
 R. R. Co. V. Anderson, 94 Pa. 351. 
 
 ^Pittsburgh, C. & St. L. R. Co. v. Williams, 74 Ind. 462 ; Cleteland, C. C. & 
 I. R. Co. V. Neimll, 104 Ind. 264, 1 West. Rep. 890; Dawson v. Man- 
 chester, S. & L. R. Go. 7 Hurl. & N. 1037; Feital v. Middlesex R. Co. 109 
 Mass. 398; Tuttle v. Chicago, R. J. & P. R. Co. 48 Iowa, 230; Carpiie v. 
 London & B. R. Co. 5 Q. B. 747. 
 
 ''New Orleans. J. & G. N. R. Co. v. Allbritton, 38 Miss. 242: Seybolt v. New 
 York, L. E. & W. R. Co. 95 N. Y. 562; Iron R. Co. v. Mowery, 36 Ohio 
 St. 418; Skinner v. London, B. & S. O. R. Co. 5 Exch. 787. 
 
 ^Smith V. St. Paul C. R. Co. 32 Minn. 1. 
 
 •'Kansas P. R. Co. v. Miller, 2 Colo. 442. 
 
 ^Bedford, S. 0. & B. R. Co. v. Rainbolt, 99 Ind. 551. 
 
 ^Cleveland, C. C. & L R. Co. v. Walrath, 38 Oliio St. 461. 
 '^oThe Reliance, 4 Woods, C. C. 420; Robinson v. New York C. & U. R. R. Co. 
 20 Blatchf . 338.
 
 156 IMPOSED DUTIES, PERSONAL. [Part L 
 
 down of a coach ;' by negligent driving ;' by tlie upsetting of a 
 stage coach' or of a sleigh/ 
 
 In all these cases there exists prima facie liability as it has 
 been shown to exist against the owner of a building from th& 
 window of which a barrel falls upon a traveler on the road ;' and 
 against a railway company for injury from a brick shaken out 
 of a long-existing defective abutment to a bridge;* or against 
 the owner of a burned building left standing in dangerous condi- 
 tion until it falls/ 
 
 So seamen who attempt to adjust hatch covers, each of which 
 weighs about 70 pounds, and is slippery from grease, are prima 
 facie guilty of want of proper care in attempting to handle them 
 one man to each, especially when no warning is given to persons 
 beneath/ And an electric company is responsible for damage to 
 a policeman on duty at a bank, by explosion of insufficient elec- 
 tric apparatus which it was working in the building/ And so- 
 a licensee of land is presumed to be liable for want of care in per- 
 mitting water to reach stored lime and burn a building thereon/* 
 
 ^Toledo, W. & W. B. Co. v. Beggs, 85 111. 80; Christie v. Griggs, 2 Camp. 79^ 
 
 Ware v. Oay, 11 Pick. 106. 
 ^Stokes V. Saltonstall, 38 U. S. 13 Pet. 181, 10 L. ed. 115. 
 ^Wall V. Livezay, 6 Colo. 465; B&yce v. California Stage Co. 25 Cal. 460. 
 *Ryan v. Gilmer, 2 Mont. 517. 
 ^Byrne v. BoadU, 3 Hurl. & C. 721. 
 
 ^Kearney v. London, B. & S. C. B. Co. L. R. 6 Q. B. 759. 
 "•Anderson v. East, 117 Ind. 126, 2 L. R. A. 712. 
 « Crawford v. The Wells City, 38 Fed. Rep. 47. 
 ^ Gates V. Southwestern Brush E. L. & P. Co. 40 La. Ann. 467. 
 ^^Licking Boiling Mill Co. v. Fischer (Ky. Jan. 26, 1889) 10 Ky. L. Rep. 763. 
 
 11 S. W. Rep. 305.
 
 CHAPTER X. 
 
 ORIGIN AND DEFINITION OF EASEMENTS AND SERVITUDES. 
 
 Sec. 17. Easements and Servitudes, 
 
 a. Defined. 
 
 b. How Created. 
 
 1. By Express Grant. 
 
 2. By Implied Grant. 
 
 3. By Prescription : Light, Air. 
 
 4. By License; Estoppel. 
 
 5. By Custom. 
 
 Section 17. — Easements and Servitudes. 
 a. Defined. 
 
 "When one in the exercise of an easement in land causes injury 
 or inconvenience to the owner of the servient tenement, in order 
 to recover for such injury, negligence in the use of the easement 
 or an unlawful extension of the use must be shown. And such 
 negligent or excessive use occurring, the owner of the tenement 
 may stop the improper or excessive use, and if in doing this with 
 care on his part the use or easement itself is interrupted or sus- 
 pended, this will give no cause of action; but such interruption 
 may be continued until the negligent or unlawful use, having 
 been severed from the lawful, can be separately stopped.' So 
 where one in the exercise of an easement is interrupted by the 
 negligent or intentional act of the owner of the soil, he may, 
 taking due care, remove the obstruction;^ and, if the interruption 
 is by a stranger, as he cannot sue the owner of the land for negli- 
 gence in permitting the interruption to continue, he must himself 
 remove the cause.^ 
 
 In examining the law of easements and servitudes, it will be 
 seen under what circumstances negligence in the exercise of the 
 right and want of care in preserving the easement by the ])erson 
 
 ^Elliott V. Eheit, 5 Rich. L. 405, 431. 
 
 ^ Adams v, Barney, 25 Vt. 325. 
 
 ^Saxby v. Manchester, S. & L. B. Co. 38 L. J. N. S. C. P. 153.
 
 158 IMPOSED DUTIES, PEKSONAL. [Part 1. 
 
 on whom this duty rests. will create liability. Generally it may 
 be said that the person who has the benefit will be under obliga- 
 tions to maintain the easement.* 
 
 In this division of the law the service or convenience which one 
 neio;hbor has of another by charter or prescription, without profit, 
 is called an easement." It is the right which one man has to use 
 the land of another for a specific purpose;^ a liberty, privilege or 
 advantage in land, without profit, distinct from an ownership in 
 the soil.^ In the civil law, a servitude is the subjection of one es- 
 tate to another, or to a person. 
 
 The essential qualities of easements are these : they are incor- 
 poreal ; they are imposed upon corporeal property ; they confer no 
 right to participation in profits arising from such property ; there 
 must be two distinct tenements, the dominant, to which the right 
 belongs, and the servient, upon which the obligation rests.* 
 
 The rights of any party having an easement in the land of an- 
 other are measured and defined by the purpose and character of 
 that easement ; and so far as is consistent therewith the right to 
 use the land remains in the owner of the fee." Ice formed within 
 the boundaries of a railroad belongs to the owner of the land^ 
 and the railroad has no right thereto.'' 
 
 An affirmative easement is such a right to do acts upon anoth- 
 er's land as amount to a positive injury to the land ; as a right of 
 way; to turn water upon it, etc. A negative easement is such a 
 right as is, in its exercise, consequentially injurious, — as forbidding 
 a thing to be done, like obstructing a light.* 
 
 An ajDparent or continuous easement depends upon some artifi- 
 
 ^ Atkins V. Bordman, 2 Met. 457; Doane v. Badger, 12 Mass. 65, 70; Wynkoop 
 V. Burger, 12 Johns. 232; Osborn v. Wise, 7 Car. & P. 761. 
 
 ^Post V. Pearsall, 22 Wend. 438; Mllis v. Munson, 108 N. Y. 453, 11 Cent. 
 Rep. 449. 
 
 ^Jackson v. TrulUnger, 9 Or. 397. 
 
 ^Riontington v. Asher, 96 N. Y. Q()^; Jamaica Pond Aqueduct Corp. v. Chand- 
 ler, 9 Allen, 165. 
 
 ^Pierce v. Keator, 70 N. Y. 421. See Parsons v. Johnson, 68 N. Y. 65; Col- 
 umbia College v. Lynch, 70 N. Y. 447, 448; Tardy v. Creasy, 81 Va. 556, 
 557; Anderson, Law Diet. 391; Garrison v. Rudd, 19 111. 558. 
 
 ^Atkins V. Bordman, 2 Met. 457; Phipps v. Johnson, 99 Mass. 26; Locks & 
 Canals v. Nashua & L. B. Co. 104 Mass. 11. 
 
 ''Julien V. Woodsmall, 82 Ind. 568. 
 
 ^Cohnnbia College v. Lynch. 70 N. Y. 448 ; 2 Waslib. Real Prop. 26, 56- 
 60, 82-85, 453-456.
 
 Chap. X.] EASEMENTS CKEATED BY EXPRESS GRANT, 15^ 
 
 cial structure upon, or natural formation of, the servient tenement, 
 obvious and permanent, which constitutes tlie easement or is the 
 means of enjoying it, as the bed of a runnino: stream, an over- 
 hanging roof. An easement of necessity is a privilege without 
 which the dominant owner could not carry on his trade or enjoy 
 some other property right. An easement of convenience enables 
 such owner to prosecute his business, or to enjoy some right in real 
 property, with increase of facilities or comfort.' 
 
 Private easements exist in favor of one or more individuals. A 
 right of way is in gross and personal to the grantee, beeanse it is 
 not appurtenant to other premises.' A grant in gross is never 
 presumed when it can fairly be construed as appurtenant to some 
 other estate.' A public easement is in favor oi the public geuer- 
 
 ally/ 
 
 There is also a secondary or appendant or appurtenant easement 
 to and upon another easement, in that it is convenient or necessary 
 to the full enjoyment of the latter. Thus, the grant of a right to 
 take water from a well and to hang clothes in defendant's yard 
 carries with it the right of a reasonable passageway to and from 
 the yard f so a right to enter to repair a way,* or to take soil 
 from the land to repair an aqueduct;' so a right of way to an 
 estate in which one has a hunting or fishing right, or the right 
 of pasturage or drawing water.* 
 
 b. How Created, 
 
 1. By Express Grant. 
 
 The law of easements and servitudes relates exclusively to land, 
 and cannot be applied to a chattel; but the owner of a building 
 disassociated in title from the land whereon it stands may, when 
 
 'Anderson, Law Diet. 891; 2 Bl. Com. 36; Snujles v. Hastings, 22 N. Y. 217;, 
 
 Brigham v. Smith, 4 Gray, 297. 
 ^Wagner v. Eanna, 38 Cal. 111. 
 ^Winston v. Johnson, 42 Minn. 398. 
 ^Anderson, Law Diet. Easements. 
 ^Bean v. Coleman, 44 N. H. 539. 
 ^McMillen v. Gronin, 57 How. Pr. 53 
 "iThoinpson v. Uglow, 4 Or. 369. 
 ^Alexander v. Tolkston Club, 110 111. 65.
 
 160 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 he sells part of it, reserve rights in the part sold, for the benefit 
 of the part retained, which the law will maintain and protect ; 
 and such rights may, by the contract of sale, be attached to the 
 building in such manner that tliey will pass with the building to 
 its successive owners.' It is competent for a grantor in a deed 
 to create a right of way over the land conveyed, in his own favor, 
 either appurtenant or in gross, by a reservation inserted in his 
 •deed ; and it may be done, though in terms it be an exception.* 
 
 When there is in a deed no declaration of the intention of the 
 parties in regard to the nature of a way granted, it will be de- 
 termined by its relation to other estates of the grantor, or its want 
 ■of such relation. Resort may also be had, in such a case, to other 
 circumstances surrounding the transaction, for the purpose of 
 ascertaining the intent and the effect to be given the instrument.' 
 
 Where on the sale of parts of a subdivision, the various deeds 
 contain restrictions of the use, which it appears, by any evidence, 
 were inserted for the enhancement of the value of the other por- 
 tions of the subdivision, a servitude will be created in favor of 
 such portions upon the lots so sold, enforceable even against pur- 
 chasers who have only constructive notice of the restrictions." 
 A right of way which is located somewhat ambiguously " on or 
 near the line " between parties, to a road which is some rods dis- 
 tant from such line, necessarily must diverge that distance. 
 Where the servient owner has by his own voluntary act fixed one 
 ■end of the way by a fence between the road and a point supposed 
 to be, but which is not, on such line, the other party is entitled 
 to have the way run from the true line by the shortest practicable 
 course to the point thus fixed.^ A grant of a right of way, over 
 land does not convey the soil, or any corjDoreal interest in it, and 
 it necessarily follows that such an owner cannot prevent even a 
 trespasser from using the land, if his use does not impede the 
 •exercise of the right of passage. In other words, an owner whose 
 
 ^Mayo V. ]Sfewhoff(N. J. May 23, 1890) 19 Atl. Eep. 837. 
 
 s 3 Winston v. Johnson, 42 Minn. 398. 
 
 ^Tohey v. Moore, 130 Mass. 448; Phmnix Ins. Co. v. Continental Ins. Co. 87 
 N.Y. 400; Uerrick v. Marshall, 66 Me. 435; Kramer v. Carter, 136 Mass 
 504; Teck v. Corncay, 119 Mass. 546; Tallmadge v. East River Bank, 26 
 N.Y. 105; Brew V. Van Deman, 6 Heisk. 4b3; Ilubbell -^.Warren, 8 Al- 
 len, 173. 
 
 ^Fritschie v. Fritschie (Wis. June 21, 1890) 45 N.W. Rep. 1088-
 
 Chap. X.] EASEMENTS CREATED BY EXPRESS GRANT. 161 
 
 land is burdened with a right of way has all the rights and bcne- 
 iits of the soil consistent M'ith the reasonable use of the \vaj.' 
 The title to the fee in a strip of land excepted and reserved for 
 an alley across the end of a lot conveyed vests in the grantee sub- 
 ject to the easement." There are many cases in which the con- 
 veyance has been made of lots npon a plan showing a way, or 
 where in the description the lot was bounded npon a way lo- 
 cated upon the grantor's own land, and it was ruled that the grant 
 •carried the way. These cases rest upon the principle that, by a 
 reference to the plan, that becomes a part of the description, and 
 carries the right of way by an express grant ; or, as where bounded 
 upon a way upon the grantor's land, it is such a representation of 
 the existence of a way material to the value of the land, as to 
 •estop the grantor from denying its truth.* So where the prem- 
 ises are conveyed by some distinguishing name, without any de- 
 scription by metes and bounds, then all parts or appurtenances 
 properly included in the descriptive name will jDass." Where 
 lands are conveyed as abutting on a proposed street, right to the 
 use thereof arises by implication. Whether such private use 
 merges in the public right when the street becomes public is matter 
 of law.* The adjacent street is regarded as an easement passing 
 with the property on conveyance, or as an appurtenance necessary 
 to its enjoyment." A purchaser of land sold by reference to a 
 plan bounding the land on a street, obtains a right of way in the 
 street, which neither the grantor nor his successors can afterwards 
 impair ; but where no reference is made to a plan, he cannot claim 
 under such rule.^ One claiming an easement on the ground that 
 the lands were conveyed as bounded on a street must rest his 
 claim on his own title deed, and not on the deed of another 
 through which he has not derived his title.* Nor will dotted 
 
 ^Jamaica Pond Aqueduct Corp. v. Chandler, 9 Allen, 159, 163; RicJuirdson 
 V. Palmer, 38 N. H. 212, 220; Welch v. Wilcox, 101 Mass. 162, 164, 100 
 Am. Dec. 113, note, 115, 118; Goddard, Easem. 4; Low v. Streeter (N. H. 
 March 14, 1890) 9 L. R. A. 271. 
 
 *Winston v. Johnson, 42 Minn. 398. 
 
 ^Bartlettv. Bangor, 67 Me. 460; Fox v. U7iion Sugar Refinery, 109 Mass. 
 292; StillweU v. Foster, 80 Me. 333, 6 New Eug.'Rep. 649. 
 
 \Stillwell V. Foster, 80 Me. 333, 6 New Eng. Rep. 649. 
 
 '^Dodge v. Pennsylvania R. Co. 43 N. J. Eq. 351, 10 Cent. Rep. 655. 
 
 Wit V. Ereiter, 110 Pa. 370, 1 Cent. Rep. 387; Spackinaii v. Stcidel, 88 Pa. 
 453. 
 
 ^ ^Dorman v. Bates Mfg. Co. 82 Me. 438. 
 11
 
 162 IMPOSED DUTIES, PERSONAL. [Part L 
 
 lines on a plat of land sold, without any description to indicate 
 plainly and unambiguously what they are intended for, establish 
 a dedication of a way across such lands, where it is not a way of 
 necessity and there is no understanding or agreement in relation 
 to the easement.' 
 
 An owner of lands who divides them into lots, and files a map 
 thereof designating a street laid down as a proposed public street 
 upon the commissioner's map, but which has not been formally 
 opened, and conveys the lots with reference to such street, thereby 
 merely recognizes the street to be opened in the future, and does 
 not grant a private way by implication.'' Where each of two ad- 
 joining land owners conveys to the other the land between hi& 
 own building and the division line between their lands, " to be 
 used as a common passway for our mutual benefit, and for no other 
 purpose," neither has any interest in the land he has conveyed, 
 except a right of way, and the grantor cannot complain of ob- 
 structions therein which do not impede him in its reasonable use 
 as a passway, although created by a third person having a mere 
 right of way over such passway.' 
 
 In the case of United States v. Appleton, 1 Sumn. 492, it was 
 said : " It is observable that in this case reliance is placed on the 
 language ' with all the ways,' etc. But this is wholly unnecessary, 
 for whatever are properly incidents and appurtenances of the 
 grant will pass without the word ' appurtenances ' by mere opera- 
 tion of law." * But general words in a conveyance passing " all 
 ways" with the land conveyed, occupied or enjoyed, will not 
 convey to the vendee a way which originated in a user by the 
 vendor of his own land for his own convenience and which had no 
 existence prior to the unity of possession of the vendor.* 
 
 The application of the rule must depend upon the nature, ar- 
 rangement and use of the estate ; the relation of the parts to each 
 other, and the existing degree of necessity, for giving such con- 
 struction to the grant as will give effect to what may be supposed 
 
 ^Lippincott v. Harvey (Md. June 20, 1890) 19 Atl. Rep. 1041. 
 
 ^Darker v. Beck (Sup. Ct. May 23, 1890) 32 N. Y. S. R. 193. 
 
 ^Low V. Streeter (N. H. March 14, 1890) 9 L. R. A. 271. 
 
 *See Morgan v. Mason, 20 Ohio, 401; Morrison v. King, 62 111. 30; Newman 
 
 V. Nellis, 97 N. Y. 285. 
 ^Barnett v. Flummer (Pa. Feb. 7, 1887) 6 Cent. Rep. 650.
 
 Chap. X.] EASEMENTS CREATED BY IMPLIED GRANT. 163 
 
 to have been, considering the manner of the use, the reasonable 
 intendment of the parties. Thus, the words " the right of pass- 
 age " are not words of art, and have no well-settled meaning in 
 the law; their import, therefore, is a question of construction, and 
 depends in each particular case upon the intent of the parties as 
 expressed in the language of the grant, explained and illustrated 
 by the locality and subject matter to which they apply.* It is com- 
 petent to prove by parol the acts of the parties at and subsequent 
 to the date of the contract, as a means of showing their own un- 
 derstanding of its terras.^ The acts, declarations and statements 
 of the parties to the grant are facts admissible in evidence to show 
 the contemporaneous construction put upon the instrument by the 
 parties.^ But a mere license to tenants, even if the owner had 
 knowledge of the user, creates no easement ; an easement cannot 
 be made by a tenant.* 
 
 2. By Implied Grant. 
 
 Easements may pass or a servitude be imposed by implication of 
 law, although not expressly named in the grant. Three things 
 are essential to the creation of an easement in the latter way : (1) 
 a separation of the title ; (2) that before the separation takes place, 
 the use which gives rise to the easement shall have been so long 
 continued and so obvious as to show that it was meant to be per- 
 manent ; and (3) that the easement shall be, in a qualified sense, 
 reasonably necessary to the beneficial enjoyment of the land 
 granted or retained.^ 
 
 Where during the unity of title an apparently permanent and 
 obvious servitude is imposed on one part of the estate in favor of 
 
 ^Cochnan v. Evans, 1 Allen, 446; Webber v. Eastern R. Co. 2 Met. 151; Phil- 
 lips V. Bowers, 7 Gray, 24; Murdoch v. Chapman, 9 Gray, 156; Knight v. 
 New England Worsted Co. 2 Cush. 271. 
 
 ^Knight v. New England Worsted Co. 2 Cush. 271. 
 
 ^Clioate V. Burnham, 7 Pick. 274; Owen v. Barthohmeio, 9 Pick. 520; Stone 
 V. Clark, 1 Met. 378; Mann v. Dunham, 5 Gray, 511; Hoiourd v. Fessen- 
 den, 14 Allen, 124; Stevenson v. Erskine, 99 Mass. 367; Morris v. French, 
 106 Mass. 826; Lovejoy v, Lovett, 124 Mass. 270. 
 
 ^Illinois Ins. Co. v. Littlefield, 67 111. 368; Gentleman v. Soule, 32 111. 272; 
 Warren v. Blake, 54 Me. 276; Kelly v. Dunning, 43 N. J. Eq. 62, 8 Cent. 
 Rep. 600. 
 
 '^Cifuik V. Klekr, 117 111. 643, 5 West. Rep. 490; Bennett's Goddard, Easem. 
 122; Kelly v. Dunning, 43 N. J. Eq. 62, 8 Cent. Rep. 600.
 
 164 IMPOSED DUTIES, PERSONAL. [Part L 
 
 another, which at the time of the severance is in use, and is rea- 
 sonably necessary for the fair enjoyment of tlie other, then upon 
 a severance of such ownership, whether by voluntary alienation or 
 by judicial proceedings, there arises by implication of law a grant 
 or reservation of the right to continue such use. In such case, 
 the law implies that with the grant of the one, an easement is also 
 granted or reserved, as the case may be, in the other, subjecting it 
 to the burden of all such visible uses and incidents as are reason- 
 ably necessary to the enjoyment of the dominant heritage, in sub- 
 stantially the same condition in which it appeared and was used 
 when the grant was made.' 
 
 Washburn, in his work on Easements, says (p. 71), quoting from 
 the note to Pearson v. Sj)encer, 1 Best <fc S. 571: "It may be con- 
 sidered as settled in the United States that, on the conveyance of 
 one of several parcels of land belonging to the same owner, there 
 is an implied grant or reservation, as the case may be, of all appar- 
 ent and continuous easements, or incidents of property, which have 
 been created or used by him during the unity of possession, though 
 they could then have had no legal existence apart from the gen- 
 eral ownership." When a building is so constructed that one part 
 of it is made tributary to the other, on a sale of that part of it 
 which is tributary to the other the natural presumption will be, in 
 the absence of an express agreement to the contrary, that the pur- 
 chaser takes the part he buys subject to such use by the other part 
 as the mechanical arrangement of the building imposes." Thus 
 the use of stairways in a building erected by several owners of 
 land as a single structure, ujjon a single plan and under a single 
 contract, no matter whether the land was then partitioned or not, 
 cannot be denied by the owners of that part which includes the 
 stairways to the owner of another part, the upper floors of which 
 can be reached in no other way.' And when the owner of an 
 entire estate makes one part of it visibly dependent for the means 
 of access upon another, and creates a way for its benefit over the 
 other, and then grants the dependent part, the other part becomes 
 
 ^Lampman v. Milks, 21 N. Y. 505; Kieffer v. Imhoff, 26 Pa. 438; Pennsyl- 
 vania R. Co. V. Jones, 50 Pa. 417; Phillips v. Phillips, 48 Pa. 178; McCarty 
 V. Kitchenman, 47 Pa. 243; Washb. Easera. 56, 619. 
 
 ^Mayo V. Mw7toff{N. J. May 22, 1890) 19 Atl. Rep. 837. 
 
 ^Pkrce V. Cleland, 133 Pa. 189, 7 L. R. A. 752.
 
 Chap. X.] EASEMENTS CREATED BY IMPLIED GRANT. 105 
 
 subservient thereto, and the way constitutes an easement appurte- 
 nant to the estate granted, and passes to the grantee as accessorial 
 to the beneficial use and enjoyment of the granted premises. An 
 easement in the use of a stairway passes as appurtenant to part of 
 a three-story building conveyed by metes and bounds, including a 
 hall on the second floor into which offices open, connected with 
 the landing of a stairway leading from the street through a room 
 of the first story, where the building covers the whole lot, and the 
 . only mode of access to the rooms sold is by the use of such stair- 
 way.' 
 
 Where the owner of two tenements, or of an entire estate, has 
 arranged and adapted them so that one tenement or one portion 
 of the estate derives a benefit and advantage from the other, of a 
 permanent, open and visible character, and sells the same, a pur- 
 chaser takes the tenement or portion sold with all the benefits and 
 burdens which appear at the time of sale to belong to it. Thus if 
 an alley was an important consideration with the purchaser of a 
 lot abutting on it, the arrangement and use of the alley for the 
 accommodation of the lot, and selling the lot with the apparent 
 appurtenance of the alley attached, are alone sufficient to give to 
 the grantee the use of the alley, when taken in connection with 
 subsequent sales made subject to the alleywa3\'' 
 
 It was said by Chancellor Kent : " Some things will pass by 
 the conveyance of land as incidents appendant or appurtenant 
 thereto. This is the case with the right of way, or other easement, 
 appurtenant to land, and if a house or store be conveyed every- 
 thing passes which belongs to or is in use for it as an incident or 
 appurtenance." ^ When an easement, consisting of the right to take 
 water from a spring on the land of another, has become api^urte- 
 nant to an estate, either by express or implied grant, or by pre- 
 scription, a conveyance of that estate will carry with it such ease- 
 ment, whether mentioned in the deed or not.* 
 
 Where the owner of two heritages, or of one heritage consist- 
 ing of several parts, sells one of them without making mention 
 
 ^National Exch. Bank v. Cunningham, 46 Ohio St. 575. 
 
 ^Cihak V. Klekr, 117 111. 643, 5 West. Rep. 490. 
 
 s 4 Kent, Com. 467. 
 
 *Donty V. Dunning, 78 Me. 381, 3 New Eng. Rep. 41.
 
 166 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 of those incidental advantages or burdens of one in respect to the 
 other, there is in the silence of the parties an implied understand- 
 ing and agreement that these apparent and continuous advantages 
 and burdens shall continue as before the separation of title,' the 
 underlying principle in such cases being that, included in the grant 
 of the principal, are all such privileges and appurtenances as are 
 obviously incident and reasonably necessary to the fair enjoyment 
 of the thing granted, substantially in the condition in which it is 
 enjoyed by the grantor, unless the contrary is provided. Where 
 the quasi easement claimed by the grantee is not really necessary 
 for the enjoyment of the estate granted, but is highly convenient 
 and beneficial thereto, if it is continuous and apparent at the time 
 of the grant, it passes to the purchaser with his estate ; otherwise 
 not* This test has been stated : whether or not the party 
 claiming the easement can do without it by constructing some- 
 thing to take the place of it at a reasonable expense. 
 "Where, by cutting out a new road a distance of 100 yards 
 through open woods and causewaying a small boggy branch, any 
 necessity to use a road across the land of another, who gave warn- 
 ing not to do so, would have been obviated, no such necessity ex- 
 isted as to furnish " a legal cause or good excuse," under Ala. 
 Code, § 3874.' The purchaser of a city lot 75 feet deep, with 
 a frontage of 25 on a street, is not entitled to a way by necessity 
 to the rear of his lot over the adjacent land of his grantor." If 
 he can at a reasonable expense secure his access over his own 
 
 ^Morrison V. King, 62 111. 30; Ingalsv. Palmondon, 75 111. 118; Haclden v. 
 Slioutz, 15 111.581; Oerberv. Orabel, 16 111. 223; Thomas v. Wiggers, 41 
 111. 471; Phillips v. Phillips, 48 Pa. 178; McCarty v. Kitchenman, 47 Pa. 
 239; Cannon \ . Boyd, 73 Pa. 179; Durelv. Boisblanc, 1 La. Ann. 407; 
 Lnrnpmanx. Milks, 21 N. Y. 505; Simmons y. Cloonan, 81 N. Y. 557; 
 Watts V. Kelson, L. R. 6 Ch. App. 166; Dunklee v. Wilton B. Go. 24 N. H. 
 489; Janes v. Jenkins, 34 Md. 1; Sanderlin v. Baxter, 76 Va. 299; Elliott 
 V. Ehett, 5 Rich. L. 405, 37 Am. Dec. 750, and note, 751-768; OoodallM. 
 Godfrey, 53 Vt. 219; Gavey. Grafts, 53 Cal. 138; Brown v. Berry, 6 Coldw, 
 98; Washb. Easem. *50 et seq.; Gale, Easem. (4th ed.) 85 ; Goddard, 
 Easem. (Bennett's ed.) 119-124; Thompson v. Miner, 30 Iowa, ZSQ;Kieffer 
 V. Imhoff, 26 Pa. 438; Thayer v. Payne, 2 Cush. 231; Patterson v. 
 Arthurs, 9 Watts, 154: Huttemeier v. Albro, 18 N. Y. 50; Seymour v. 
 Leicis, 13 N. J. Eq. 439, 78 Am. Dec. 108, 120, and noU; Henry v. Koch, 
 80 Ky. 391, 44 Am. Rep. 484; Blake v. Ham, 50 Me. 311; Dolliffy. Bos- 
 ton & M. B. Go. 68 Me. 176. 
 
 ^Cihak V. KUkr, 117 111. 643, 5 West. Rep. 490. 
 
 i Wilson V. State, 87 Ala. 117. 
 
 ^Smith V. Oriffin (Colo. Apr. 25, 1890) 23 Pac. Rep. 905.
 
 ■Chap. X.] EASEMENTS CREATED BY IMPLIED GRANT. 167 
 
 ground, then, the deed being silent, he cannot daim the casement 
 but if not, and tlie easement claimed is necessary to the beneficial 
 use of his property, the easement passes ; and this is based upon 
 the doctrine that a man shall not derogate from his grant.' It is 
 enough to show that the easement passes if it would require an 
 unreasonable amount of labor and expense to render the possible 
 way convenient, — that is, labor and expense which would be ex- 
 cessive and disproportionate to the value of the land to be accommo- 
 dated." A mere temporary or provisional arrangement, however, 
 which may have been adopted by the owner for the more conven- 
 ient enjoyment of the estate, cannot constitute the degree of neces- 
 sity or permanency which would authorize the engrafting upon a 
 deed, by construction, of a right to the enjoyment of something 
 not within the lines described. To justify such construction, it ' 
 must appear from the disposition, arrangement and use of the 
 several parts, that it was the owner's purpose, in adopting the ex- 
 isting arrangement, to create a permanent and connnon use, in the 
 one part, for the benefit of the other, or for the mutual benefit of 
 both, and it must be reasonably inferable from the existing dispo- 
 sition and use that it was intended to be continuous, notwithstand- 
 ing the severance of ownership.' If it appears by a fair inter- 
 pretation of the words of a grant, in connection with surrounding 
 circumstances, that it was the intention of the parties to create or 
 reserve a right in the nature of an easement in the property 
 granted, for the benefit of other laud of the grantor, and origin- 
 ally forming, with the land conveyed, one parcel, such right will 
 be deemed appurtenant to the land of the grantor, and binding on 
 that conveyed. The right and burden thus created will pass to 
 and be binding on all subsequent grantees of the respective par- 
 
 '^Johnson V. Jordan, 2 Met. 234; Leonard v. Leonard, 2 Allen, 543: Nichols 
 
 V. Luce, 24 Pick. 103; Laicton v. Rivers, 2 McCord, L. 445, 13 Am. Dec. 741, 
 
 746, note; Thayer v. Payne, 2 Cush. 327; Brigham v. Smith, 4 Gray, 297; 
 
 Olivers. Dickinson, 100 Mass. 114; Pingreev. McDujJie, 56 N. H. 306; 
 
 Thompson v. Miner, 30 Iowa, 386; Miteliell v. Seipel, 53 Md. 251. 
 ^Pettingia v. Porter, 8 Allen, 1; Kieffer v. Imhoff, 26 Pa. 438; New Ipswich 
 
 W. L. Factory v, Batchelder, 3 N. H. 190; 2 Washb. Real Prop. (3d ed.) 
 
 288, § 16. 
 ^Francies' Appeal, 96 Pa. 200; Lammott v. Ewers, 106 Ind. 310, 4 West. 
 
 Rep. 553; CowellY. Thayer, 5 Met. 253; Ray v. Fletcher, 12 Cush. 200; 
 
 Daniels y. Citizens Sav. Inst. 127 Mass. 534; Voter v. Uobbs, 69 Me. 19; 
 
 Lacyv. Arnett, 33 Pa. 169; Uynds v. Shults, 39 Barb. 600; March v 
 
 Shults, 29 N.Y. 346; Oreen v. Collins, 86 N.Y. 246.
 
 168 IMPOSED DUTIES, PERSONAL, [Part I, 
 
 eels of land." Thus, where the owners in fee of a house fronting 
 a street, and also of a yard and premises in rear of the house, 
 conveyed the premises in the rear, " together with the exclusive 
 use of the gateway," which was described by dimensions, in its 
 fee, the grantee was entitled, not merely to a right of way thi-ough 
 the gateway, but to the use of the gateway for all lawful pur- 
 poses." An owner of lands is not chargeable with notice of an 
 easement or servitude which is not visible or apparent, across his 
 lands, by the fact that such servitude is referred to in subsequent 
 recorded deeds which do not constitute a part of his chain of 
 title.' Where such arrangement is visible, and apparently de- 
 signed to be permanent, and is valuable and reasonably necessary 
 to the enjoyment of the parcel granted, the parties will be pre- 
 sumed to have contracted with reference to the condition of the 
 property at the time of the grant, and neither " has a right to 
 alter arrangements then openly existing so as to change materially 
 the relative value of the respective parts." * The rule above stated 
 was applied with some degree of liberality in the notable case of 
 Pyer v. Carter^ 1 Hurl. & N. 916, the authority of which, al- 
 though denied in the later case of Suffield v. Brown, 33 L. J. Ch. 
 249, is, nevertheless, in principle generally accepted in this 
 country, with some qualification as to the degree of necessity re- 
 quired in order to authorize the inference of a grant or reserva- 
 tion by implication. In numerous cases it was held that nothing 
 short of absolute necessity would authorize such inference.* 
 Some of the courts have by implication and in express terms de- 
 clared that a mere matter of convenience was not suflicient in 
 itself alone to create an easement.* The latest English case upon 
 
 1 Winston v. Johnson, 42 Minn. 398. 
 
 meilly V. Booth, L. R. 44 Ch. Div. 12. 
 
 ^Treadwell v. Inslee, 120 N. Y. 458. 
 
 *Curtissv. AyrauU.Al N. Y. 73; Biitterworth v. Crawford, 46 N. Y. 349; 
 Caxe V. Crafts, 53 Cal. 185; Kelly v. Dunning, 43 N. J. Eq. 63, 8 Cent. 
 Rep. 600; Lampnian v. Milks, 21 N. Y. 505; Dunklee v. Wilton R. Co. 24 
 N. H. 489; Seymour Y. Lewis, 13 N. J. Eq. 439; Morrison v. King, 63 
 111. 30. 
 
 ^Carhrey v. Willis, 7 Allen, 364; Randall v. McLaughlin, 10 Allen, 366; Buss 
 V. Dyer, 125 Mass. 287; Warren v. Blake, 54 Me. 276. 
 
 ^Turnbullv. Rivers, 3 McCord, L. 89; McDonald v. Lindall, 3 Rawle, 495; 
 Seeley v. Bisliop, 19 Conn. 134; Lawton v. Rivers, 2 McCord, L. 445; Ran- 
 dall V. McLaughlin, 10 Allen, 366; Carbrey v. Willis, 7 Allen, 370; /Screven 
 V. Gregorie, 8 Rich. L. 163; Nichols v. Luce, 24 Pick. 104; Pomfret v. JSi-
 
 Cliap. X.] EASEMENTS CREATED BY IMPLIED GEANT. iC9 
 
 the subject tends towards the conchision that, altliough an eapcment 
 be both continuous and apparent, there is no implied reservation 
 of it upon the severance of two tenements, unless it be also an 
 easement of necessity.' The necessity requisite cannot be created 
 by the party claiming the right of way," for it is not sufficient 
 that the claimant himself create the necessity ; " as if a self-created 
 necessity should be, either in law or reason, any justitication of a 
 trespass committed on another's land." * 
 
 It has been said that only such incorporeal easements as are 
 strictly essential and necessary to the enjoyment of the estate 
 granted pass with the word "appurtenances."* The owner of 
 two adjoining city lots, Nos. 141 and 143, conveyed lot No. 143 
 to defendant's grantor by metes and bounds as being twenty-twa 
 feet wide, " with the buildings and improvements thereon," " to- 
 gether with all and singular, the easements, hereditaments and ap- 
 purtenances thereto belonging." The house then and now on the 
 lot conveyed extended bej^ond the land called for by the deed five 
 feet, on lot No. 141 on the east up to the west wall of the buildino- 
 thereon, which was used as the east wall of the house, the greater 
 part of which was on the land conveyed, but was not used as a 
 party-wall, the timbers not being keyed into it but resting on piers. 
 The case was distinct from Rogers v. Siyisheimer, 50 N. Y. 646 • 
 and it was determined that the deed conveyed only that part of 
 the house occupied by defendant which is on the land described 
 therein, and that no easement exists for the extension of the house 
 upon the land not conveyed. In the Rogers Case the original 
 owner had built two houses on the two lots with a party-wall eio-ht 
 inches thick between them which served as a support for the beams 
 of each house. On the same day he sold the houses by two deeds 
 
 croft, 1 Saund. 323, note; Collins v. Prentice, 15 Conn. 39; Pierce v. Selleck, 
 18 Conn. 321; Fetters v. Eumi^hreys, 19 N. J. Eq. 471; Stuitvemntv Wood- 
 ruff, 21 N. J. L. 133; Brakely v. 8harp, 9 N. J. Eq. 9; Barker v. Clark, 
 4 N. H. 380; Johnson v. Jordan, 2 IVIet. 234; Philbrick v. Ewing, 97 Mass' 
 133; SuJJieklY. Brown, 10 Jur. N. S. Ill; Warren v. Blake, 54 Me. 276- 
 Oayetty v. Bethune, 14 Pick. 51. See Am. Law Rev. Oct. 1809, p. 61.' 
 
 ^Wheeldon v. Burrows, 27 Week. Rep. 165. 
 
 ^McDonald v. Lindall, 3 Rawle, 495. 
 
 ^Pomfret v. Ricroft, 1 Saund. 323, note. 
 
 *Kelly V. Dunning, 43 N. J. Eq. 62, 8 Cent. Rep. 600; Root v. WaflJinms, 107 
 N. Y. 384, 9 Cent. Rep. 874; Ogden v. Jennings, 62 N. Y. 526- GriffiLli^ 
 V. Morrison, 106 N. Y. 165, 7 Cent. Rep. 773.
 
 170 IMPOSED DUTIES. PERSONAL. [Part I. 
 
 to two different parties ; conveyed tlie easterly lot to A, the plain- 
 tiff's grantor, and the westerly lot to B, the defendant's grantor. 
 The deed to the latter, by the description, located a division line 
 so as to throw the party-wall and two inches of land on the west- 
 erly side thereof within the plaintiff's lot. The plaintiff recovered 
 3. iudgment, which was reversed at general term, and the reversal 
 was affirmed on appeal. It was placed upon the ground that as it 
 was a party-wall which at the time of the conveyance served as a 
 support for the beams of the house erected on the lot then belong- 
 ing to defendant, the premises were obviously charged with the 
 servitude of having the beams of the houses rest in the wall and 
 the wall remain as an exterior wall for defendant's house so long 
 as the building should endure. Effect was given to the fact that 
 it was a party-wall and contained an actually existing support 
 therein for the beams of each house, and the right existed to the 
 use of it as an exterior wall, and consideration was taken of the 
 fact that there was a space of but two inches beyond the party- 
 wall which plaintiff claimed, and that the space was so short as to 
 prevent the idea being formed that there was an intention by such 
 conveyance to terminate the character of the wall and the right of 
 defendant to rest his beams upon it. Such right of support exist- 
 ino- carried with it, of course, the right to occupy the space for two 
 inches between the easterly boundary of defendant's lot and the 
 wall with the timbers which were to be supported in the wall. 
 But in the case in judgment, there was no party-wall and no right 
 of support for the beams of defendant's house. The exterior wall 
 of the existing house had simply been utilized as being partition 
 enouo-h between the houses, and no part of it was used as a sup- 
 port for any of the timbers of the house in question, and this wall 
 was five feet from the line of the premises which were actually 
 conveyed to the defendant. The character of the easement claimed 
 by the defendant in effect does not differ from a claim of a fee to 
 the five feet, for the right to occupy the space with the front and 
 rear walls, and to have the westerly wall of the other building 
 serve as the eastern exterior wall of defendant's, requires in its 
 exercise the actual and exclusive possession of that amount of 
 land, although it was never conveyed to defendant. As there is 
 no intention to make a conveyance of any such right expressed in
 
 Chap. X.] EASEMENTS CREATED BY IMPLIED GRANT. 171 
 
 the deed, it was decided that there was nothinoj in the Rogers 
 Case which compels or autliorizes an imphcation of such an inten- 
 tion. It was ruled that a privy, hydrant, etc., not being in any 
 sense appurtenant to the land conveyed, and their maintenance 
 not necessary to its enjoyment and scarcely even convenience, they 
 would not operate to place an easement upon the five feet.* But 
 the right to maintain and enjoy the exterior walls of a house car- 
 ries with it the right to occupy the space between the boundary 
 of the lot and the exterior wall of the building." But a mere 
 convenience, it is ruled in New York, Massachusetts and Maine, 
 is not sufficient to create a right of easement.' Yet it is said a 
 purchaser of real estate takes the property subject to an evident 
 easement, in the absence of any reservation.* It may be inferred 
 that the rule in Pyer v. Carter, 1 Hurl. & N. 916, might have 
 been looked upon with more favor by the courts in many cases, if 
 it had been sought to apply it to grants of the dominant estate.* 
 Whether this inference is justified or not, the weight of authority 
 in such cases sustains a rule less exacting than that of strict and 
 indispensable necessity.* Thus it is said an easement, to pass by 
 a severance of the heritages, need not be a physical necessity ; it 
 is sufficient if it is " highly convenient and beneficial therefor." ^ 
 "Whoever grants a thing is understood to grant that without 
 which the grant itself would be of no effect ; and it is under this 
 rule that a way of necessity is implied.* "When the use of any- 
 
 ^ Griffiths V. Morrison, 106 N. Y. 165, 7 Cent. Rep. 773. 
 
 ^Rogers v. Sinsheimer, 50 N. Y. 648. 
 
 ^Griffiths V. Morrison, 106 N. Y. 165, 7 Cent. Rep. 773; Carbrey v. Willis, 7 
 
 Allen, 364; Ogden v. Jennings, 62 N. Y. 526; Boot v. Wadhams, 107 N.Y 
 
 384, 9 Cent. Rep. 874; Stevens v. Orr, 69 Me. 323. 
 *Pierce v. Cleland, 133 Pa. 189, 7 L. R. A. 752; ZeU v. First Universalist Soc. 
 
 119 Pa. 390, 12 Cent. Rep. 148. 
 ^Dillrnan v. Hoffman, 38 Wis. 559; Washb. Easem. 71. 
 ^Eenry v. Koch, 80 Ky. 391; Gannon v. Boyd, 73 Pa. 179; Simmons v. Cloo- 
 
 nan, 81 N. Y. 557; Ingals v. Palmondon, 75 111. 118; Rogers v. Sinsheimer, 
 
 50 N. Y. 646; United States v. Appleton, 1 Sumn. 492; Janes v. Jenkins, 
 
 34 Md. 1. 
 
 'Goddard, Easem. (Bennett's ed.) 122; Washb. Easem. (3d ed.) 95; Penn- 
 sylvania R. Go. V. Jones, 50 Pa. 417; McGarthy v. Kitclienman, 47 Pa. 
 239; Watts v. Kehon, L. R. 6 Ch. App. 166; McPherson v. Acker, 4 
 MacxVrth. 150; Janes y. Jenkins, 34 Md. 1; Mcart v. Gochrane, 4 Macq. 
 123; Pyer v. Garter, 1 Hurl. & N. 916; Sanderlin v. Baxter, 76 Va. 299; 
 Simmons v. Gloonan, 81 N. Y. 557; Goodallv. Godfrey, 53 Vt. 219; Brown 
 V. Berry, 6 Coldw. 98; Lampman v. Milks, 21 N. Y.505; Fetters v. Hum- 
 phreys, 18 N. J. Eq. 260. 
 
 ^Boody V. Watson, 64 N. H. 162, 4 New Eng. Rep. 563.
 
 172 IMPOSED DUTIES, PERSONAL. [Part L 
 
 thing is granted everything is granted by which the grantee may 
 have enjoyment of such use.' Even if an easement existed which 
 was merged or extinguished by unity of title and possession, yet 
 upon a severance, an easement which was apparent and obvious 
 would revive." The degree of necessity is to be determined rather 
 by the permanency, apparent purpose and adaptability of the dis- 
 position made by the owner during the unity of title than by con- 
 sidering whether a possible use can be made of the parcel granted, 
 after a discontinuance of the right formerly exercised over the 
 other.' But in Maine and Massachusetts no easement, whether 
 continuous or not, will pass by implication unless it is one of strict 
 necessity.* Whether the continuance of the previous use is indis- 
 pensable to the future enjoyment of the estate granted in the con- 
 dition it was in when severed, the practicability and effect of new 
 adjustments, and the expense involved in making them, while not 
 conclusive, may properly be taken into account, not for the pur- 
 pose of determining the necessity of a continuance of the use, but 
 to illustrate the degree of probability that the purchaser, as a rea- 
 sonable man, took the conveyance with the expectation that the 
 existing use would be continued. The particular facts, and the 
 situation and disposition of the estate, in each case, must control. 
 The reasonable application of the doctrine leads to the general 
 conclusion that, if the service imposed on one, during the unity of 
 possession of the parcels of land, was of a character looking to 
 permanency, and the discontinuance of such service would ob- 
 viously invoke an actual and substantial re-arrangement of that 
 part of the estate in whose favor the service was imposed, to the 
 end that it might be as comfortably enjoyed as before, then such 
 a degree of reasonable necessity would seem to exist as would raise 
 an implication that the use was to be continued. Thus in John 
 Hancock M. L. Ins. Co. v. Pattei^son^ 103 Ind. 582, 1 West. Eep. 
 124, where the owner of several contiguous lots of lands, on which 
 there were buildings, mortgaged certain of the same, with the 
 buildings, and at about the same time conveyed an adjoining lot 
 
 ""Salem Capital Flour Mills Co. v. Stayton W. D. & C. Co. 33 Fed. Rep. 146. 
 ^Washb. Easem. (3d ed.) *p. 525; Kieffer v. Imlioff, 26 Pa. 438; Janes v. 
 
 Jenkins, 34 Md. 1; Dunklee v. WMon B. Co. 24 N. H. 489. 
 ^Dunklee v. Wilton R. Co. 24 N. H. 489; French v. Carhart, 1 N. Y. 96. 
 *Buss V. Dyer, 125 Mass. 287; Dolliffv. Boston <& M. B. Co. 68 Me. 173.
 
 Ohap. X.] EASEMENTS CKEATED BY IMPLIED GRANT. 173 
 
 to another person, and upon foreclosure of the mortgage it ap- 
 peared that a house on one of the mortgaged lots projected over 
 the line and stood on five feet of the lot otherwise conveyed, it 
 was ruled that the use of the five feet of the adjoining lot being 
 essential to the use of the house and its continuance being indis- 
 pensable to the future enjoyment of the estate granted in the con- 
 dition it was in when severed, the grant of an easement to continue 
 such use must be implied, and so much of the lot subsequently 
 conveyed as is covered by the house was declared subject to the 
 servitude of the easement. 
 
 If, on the other hand, the arrangement was of an indifferent or 
 probably temporary character, having no apparent adaptability to 
 use for the several parts in the situation in which they are, and 
 the continuance of which, while obviously detrimental to the one, 
 would be of no peculiar value beyond mere convenience to the 
 other, then no grant would be implied. Thus, where the owner 
 of two stores containing but one flight of stairs, to which there 
 was access through a partition wall, sold the store in which there 
 were no stairs, and described it by metes and bounds, making the 
 centre of the wall the dividing line, the conveyance did not carry 
 with it the right of way of necessity over the flight of stairs, as 
 tlie door cut through the partition wall was evidently only a tem- 
 porary expedient and the purchaser could make a stairway upon 
 his own premises, which had a front on the public street.' In 
 Maine the rule of necessity is rigidly held to." In fact a right 
 of way from necessity, it has been said, does not lie in grant, nor 
 is it created by deed, but by operation of law, and is an appurte- 
 nance of the thing granted.^ But the weight of authority as shown 
 by the citations certainly rests the right upon an implied grant. 
 Where land is conveyed, to which there is no access except across 
 the lands of the grantor, or of the structure, the grantee is entitled 
 to right of way across the lands of the grantor which will pass 
 with the estate.* A way of necessity arises where an owner of 
 lands conveys a tract to which there is no access except by private 
 road over his other lands.' But the right to use an alley 
 
 ^Stillwell V. Foster, 80 Me. 333, 6 New Eng. Rep. 649. 
 ^Warren v. Blake, 54 Me. 276; Stevens v. Orr, 69 Me. 323. 
 ^^Kripp V. Curtis, 71 Cal. 62. 
 ^Barnard v. Lloyd, 85 Cal. 131.
 
 174 IMPOSED DUTIES, PERSONAL. [Part L 
 
 which is the only approach from the highway to land sold passes, not 
 as a way of necessity, but as an appurtenance.' The rule allow- 
 ing a way of necessity preserves access but does not give two modes 
 of access and double right of way.' A grant that carries with it a 
 right of way of necessity does not necessarily imply a carriageway, 
 even though the thing granted be a liouse.^ A way of necessity 
 ceases as soon as the necessity ceases." A right of way is not limited 
 to the grantee who has purchased land surrounded by other land 
 of the grantor, but extends to a grantor who has conveyed land 
 shutting himself off from a highway.* 
 
 A rule which commends itself both from its foundation in rea- 
 son, and its support in authority, draws a distinction between two 
 classes of easements. A continuous or apparent easement is either 
 a fixture, or it is enjoyed by means of a fixture, upon the land itself. 
 There is something visible by which it may be known to a pur- 
 chaser, as an overhanging roof, a sewer or a water-pipe actually 
 used for the purposes indicated by their presence. A right of 
 way or discontinuous easement of any kind is only exercised at 
 intervals, and is a latent incumbrance or claim, the very existence 
 of which may depend on uncertain and doubtful testimony. It is 
 only as to such discontinuous easements that the rule of absolute 
 necessity should be applied, and then only when the necessity can- 
 not be obviated by a substitute constructed on or over the domi- 
 nant premises.' And in Nicholas v. Chamherlain^ Cro. Jac. 121, 
 cited as the leading case on the whole subject, the doctrine is laid 
 down that apparent or continuous easements, such as the use of 
 water pipes and sewers in existence, will be created by implica- 
 tion upon the conveyance of the servient tenement by the com- 
 mon owner, he retaining the dominant tenement.'^ Upon the 
 
 ^Zell V. First Universalisi Soc. 119 Pa. 390, 12 Cent. Rep. 148. 
 
 ^Kings County F. Ins. Co. v. Stevens, 101 N. Y, 411, 2 Cent. Rep. 430. 
 
 3 ^Rowell V, Doggett, 143 Mass. 483, 3 New Eng. Rep. 756. 
 
 ^Ogden v. Grove, 38 Pa. 491; Collins v. Prentice, 15 Conn. 39; Buckby v. 
 Coles, 5 Taunt. 311; Prowattain v. Philadelphia (Pa. Feb. 8, 1886) 2 Cent. 
 Rep. 333; 3 Kent, Com. 423; Clark v. Cogge, Cro. Jac. 170; Brigham v. 
 Smith, 4 Gray, 297; White v. Bass, 7 Hurl. & N. 732; Seymour v. Lewis, 
 13 N. J. Eq. 444. 
 
 ^Lampman v. Milks, 21 N. Y. 506; Tliayer v. Payne, 2 Cush. 332; Pheysey 
 V. Vicary, 16 Mees. & W. 484; Pyer v. Carter, 1 Hurl. & N. 919; Fetter 
 V. Humphreys, 18 N. J. Eq. 260. 
 
 'Gale & W. Easem. 40; Wheeldonv. Burrows, L. R. 12 Ch. Div. 31, 49; 
 Archer v. Bennett, 1 Lev. 131; Coleman's App. 62 Pa. 275; Washb. Easem. 
 (4th ed.) 105, §§ 3, 42 b.
 
 Chap. X.] EASEMENTS OKEATED BY IMPLIED GRANT. 175 
 
 severance of a heritage a grant will be implied, first, of all those 
 continuous and apparent easements — including those that may be 
 known on a careful inspection by one ordinarily conversant with 
 the subject — which have in fact been used by the owner during 
 the unity, chough they have had no legal existence as easements ; 
 and secondly, of all those easements without which the enjoyment 
 of the several portions could not be fully had.' 
 
 But there is a class of rights which one may have in another's 
 land without their being exercised in connection with the occu- 
 pancy of their lands, and therefore called rights in gross. In such 
 cases, the burden rests upon one piece of land in favor of a person 
 or individual. The particular distinction between an casement 
 and a right of way in gross is found in the fact that in the first 
 there is, and in the second there is not, a dominant tenement. 
 The right of way is in gross and personal to the grantee because 
 it is not appurtenant to other premises. The owner of premises 
 may grant the right of way in either form,* Where the grant of 
 a right of way is personal it is not assignable or inheritable and 
 cannot pass to a trustee in insolvency or to a corporation succeed- 
 ing the individual grantees.* But an easement of a right of way 
 is not presumed to be personal, where it can fairly be construed to 
 be appurtenant to some other estate.* A right of way across a 
 lot, given by a conveyance of an adjoining lot, to be used in com- 
 mon with the grantors and the owners and occupants of the for- 
 mer lot, is a right appurtenant to the lot conveyed ; and the 
 grantee, after he has conveyed the lot, cannot claim to be still 
 entitled to use the right of way in connection with any other lot 
 subsequently acquired.^ A reservation, in a conveyance of a lot 
 which has a right of way appurtenant, of such right of way to the 
 grantor, is ineffectual. He cannot enlarge the right, or retain any 
 
 ' Gale & W. Easem. 49, 51. 53; Lampman v. Milks, 21 N, Y. 507; Bobbins v. 
 Barnes, Hobart, 131; Nicholas v. Chamberlain, Cro. Jac. 121; Cox v. Mat- 
 tJiews, ] Vent. 237; Pabner v. Fletcher, 1 Lev. 122, 1 Sid. 167; Shury v. 
 Piggott, 3 Bulst. 339; Brakeli/ v. Shai-p, 10 N. J. Eq. 206; Hazard v. Robin- 
 son, 3 Mason, 222; United Slates v. Appleton, 1 aumn. 492; New-Ipsicich 
 W. L. Factory v. Batchelder, 3 N. H. 190; Kilgour v. Ashcom, 5 Har, & J. 
 82; Seymour v. Lewis, 13 N. J. Eq. 444. 
 
 ^Wagner v. Hanna, 38 Cal. 111. 
 
 ^Hall V. Armstrong, 53 Conn. 554, 1 New Eng. Rep. 831. 
 
 ^Reise v. Enos (Wis. Apr. 29, 1890) 8 L. R. A. 617; Winston v. Johnson, 42 
 Minn. 398. 
 
 ''Reise v. Enos (Wis. Apr. 29, 1890) 8 L. R . A. 617.
 
 176 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 interest in the right of way, as separate and distinct from the lot 
 to which it belongs.* An agreement conveying the right to use 
 fences and buildings for advertising purposes will create an ease- 
 ment and right of way in gross. The record of such agreement 
 will affect creditors and subsequent purchasers." If the owner of 
 land annexes to part of it a right of way, as appurtenant to the 
 land, and then conveys such land, his grantees acquire an ease, 
 ment.' A way for Agricultural purposes, whether cieated by 
 grant or adverse use, may properly be subjected to gates and bars 
 not unreasonably established.* The nature of the easement gained 
 determines its character, and not the particular manner of the use 
 that created the right." A grantee of land across which a prior 
 grantee from the same grantor has the right to a way by necessity 
 takes it subject to such right, although it had been neither exer- 
 cised nor claimed before his title was acquired.' And where a 
 right of way is granted, it becomes an appurtenance to the land, 
 following it into the hands of each successive grantee.'' 
 
 3. By Pt'escriptioTi : Light, Air. 
 
 Easements originate in grant, or reservation in deed of land, or 
 are implied by prescription. They do not change with the per- 
 sons. Disturbances may be checked or removed, by action on 
 the case, by injunction or by abatement.* 
 
 Eights at common law are acquired by prescription when pos- 
 session or enjoyment had existed where " the memory of man ran 
 not to the contrary." Prior to the Statute of Merton the limita- 
 tion of a writ of right was from the time of Henry I., that is to 
 
 ^Reise v. Enos (Wis. Apr. 29, 1890) 8 L. R. A. 617. 
 
 ^Willouglihyv. Lawrence, 116 111. 11, 3 West. Rep. 472. 
 
 ^Parish v. Gaspare, 109 Ind. 586, 7 West. Rep. 369, 
 
 4 ^Ames V. Sliaw, 82 Me. 379. 
 
 ^Logan v. Stogsdale, 123 Ind. 372, 8 L. R. A. 58. 
 
 ''Boss V. Thompson, 78 Ind. 90; Bobinson v. Thrailkill, 110 Ind. 117, 8 West. 
 Rep. 556. 
 
 ^Cagle v. Parher, 97 N. C. 271 ; Brooks v. Beynolds, 106 Mass. 31 ; An- 
 derson, Law Diet. 391; Sanderlin v. Baxter, 76 Va. 305; CJieney v. 
 O'Brien, 69 Cal. 199; Earwood v. TompTcins, 24 N. J. L. 425; Wheeler v, 
 Clark, 58 N. Y. 267; Steere v. Tiffany, 13 R. I. 570; Burnham v. Nevins, 
 144 Mass. 88, 94; Plimpton v. Converse, 42 Vt. 712; Deerfield v. Connecti- 
 cut River R. Co. 144 Mass. 325; Black v. Hara, 54 Conn. 17; Zigefoose 
 V. Zigefoose, 69 Iowa, 391.
 
 Chap. X.] EASEMENTS OBEATED BY PKESCRIPTION. 177 
 
 fiay from the year 1100, or 135 years.' By the Statute of Mer- 
 ton," a limitation in a writ of right was from the time of Henry 
 II., a period of 70 years. Writs of mort W ancestor and of entry 
 were not to pass the last return of King John from Irehmd, a 
 period of 25 years. Writs of novel de seizin were not to pass the 
 first voyage of the King into Gascony, a period of 15 years. By 
 the Statute of Westminster,' the time for bringing a writ of right 
 was limited to the time of King Richard L, a period of 88 years. 
 Writs of moi't d'ancestor, of cosinage, of aiel and of entry were 
 ■limited to the coronation of Henry III., about 58 years. The 
 writ of oiovel de seisin was to remain limited as before, namely, 
 to the passage of Henry III. into Gascony. Although this Stat- 
 ute had reference to actions for the recovery of real estate, the 
 judges applied the rule as to the prescription established by the 
 Statute of Incorporeal Hereditaments, and, among others, to 
 easements. 
 
 To relieve the difficulty arising from the impossibility of car- 
 rying back the proof of possession or enjoyment, it was held that 
 if the proof was carried back as far as the living memory would 
 go, it should be presumed that the right claimed had existed from 
 legal memory, that is to say, from the time of Richard I. In 
 Bury V. Pope, Cro, Eliz. 118, in an action for stopping lights, it 
 was agreed that if two men be owners of two parcels of laud ad- 
 joining, and one of them build a house upon his land, and 
 make windows and lights looking onto the other's land, and the 
 house and the lights have continued for the space of thirty or 
 forty years, yet the other may upon his own land and soil law- 
 fully erect a house or other thing against the said lights and win- 
 dows, and the other can have no action ; for it was his fault to 
 build his house so near to the other's land ; and as late as 1 Car. 
 II. it was held in Sury v. Pigot, 1 Popham, 16G, that to maintain 
 an action for obstructing lights, the light must be prescribed for 
 as having been in time out of mind. The Statute of Jac. I., chap. 
 21, which limits the time for a possessory action to twenty years, 
 led to the adoption of that period by the court as sufficient to 
 
 ' Bracton, De Legibus, 179. 
 2 20 Henry III. chap. 8. 
 « 3 Edward I. [1275] cbap. 39. 
 12
 
 178 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 found the presninption of the existence of a right from the time 
 of legal memory. But this presumption of prescriptive right was 
 held capable of being repudiated by proof of an original grant at 
 a time later than that of legal memory ; and the presumption failed 
 whenever, in the progress of the cause, it appeared that the dis- 
 puted right had had a later origin. To avoid this, as every incorpo- 
 real hereditament must have had its origin in a grant, the fiction 
 was resorted to of presuming, after long user, a grant by a deed 
 which, in the lapse of time, had been lost. After the Statute of 
 James, user for twenty years was held to be sufficient to raise this 
 presumption of a lost grant, and juries were directed so to find 
 where the presumption was known to be a mere fiction. The Act 
 of 2 and 3 William IV., chap. Tl, was passed with a view of put- 
 ting an end to this forced presumption. In Mayor of Kingston 
 V. Horner^ 1 Cowp. 102, 108, Lord Mansfield thus explains the 
 law : " There is a great difEerence between length of time which 
 operates as a bar to a claim, and that which is only used by way 
 of evidence. A jury is concluded by length of time that operates 
 as a bar, i. e., where the Statute of Limitations is pleaded in bar 
 to a debt ; though the jury is satisfied that the debt is due and un- 
 paid, it is still a bar. So in the case of a prescription, if it be time 
 out of mind, the jury is bound to conclude a right from that pre- 
 scription, for there would be a legal commencement of a right ; 
 but any written evidence showing that there was a time when the 
 prescription had not existed, is an answer to a claim founded on 
 prescription ; but length of time used merely by way of evidence 
 may be left to the ansideration of the jury, to be credited or not, 
 and to draw inferences one way or the other, according to the 
 circumstances.'" 
 
 In Cross v. Lewis, 2 Barn. & C. 686, an action for obstructing 
 ancient lights, and in which the lights were proved to have ex- 
 isted for 38 years, Bailey, J., when the case was before the Court 
 of King's Bench on the rule nisi, entered a verdict for the de- 
 fendant, and says : " I do not say that twenty years' possession 
 confers a legal right; but uninterrupted possession for twenty 
 years raises a presumption of right; and ever since the decision in 
 Darwin v. Upton, 2 AVm. Saund. 175, it has been held, in the 
 
 ' See Campbell v. Wilson, 3 East, 294.
 
 Chap. X.] EASEMENTS CREATED BY PRESCRIPTION. 179 
 
 absence of any evidence to rebut tliat presumption, and the jury 
 should be told to act upon it." 
 
 In Livett V. Wilson^ 3 Bing. 115, Best, Ch. J"., said : " I do not 
 dispute that if there had been uninterrupted usage for twenty 
 years the jury might be authorized to presume it originated in a 
 deed, but even in such a case a judge would not be justified in 
 saying that they must, but they may, presume tlie deed. If, 
 however, there are circumstances inconsistent with the existence 
 of a deed, the jury should be directed to consider them and decide 
 accordingly." 
 
 An instance in which such a presumption failed is to be found 
 in the case of Barker v. Richardson, 4 Barn. & Aid. 579. There 
 lights had been enjoyed for more than twenty years over land 
 which during part of the time had been glebe land. The defend- 
 ant, a purchaser under 55 Geo. III., chap. 107, had obstructed the 
 lights. It was held that the grant could not be presumed, inas- 
 much as the erector, being only a tenant for life, was incompetent 
 to grant such easement. 
 
 But an attempt to raise an old party- wall fifteen feet, on the 
 ground that boxes had frequently been piled up to that height, 
 darkening plaintiffs windows, was enjoined on the ground that 
 no interruption of plaintiffs enjoyment of light continuing for 
 one year within the meaning of the English Prescription Act was 
 shown to overcome the plaintifi's prima facie case of twenty years' 
 enjoyment.* 
 
 Under the Statute of 1832 in England and in the judgment of 
 the courts in New Jersey the doctrine of ancient lights was once 
 recognized,^ but in that State it is since denied.' But in South 
 Carolina, in Kentucky (by obiter) and in Delaware, this enjoy- 
 ment for twenty years creates a prescriptive right.* 
 
 "Where plaintiffs house stood on the line of an alley, never 
 dedicated to the public, which ran between plaintiff's lot and the 
 defendant's, the court enjoined the erection in the alley of a fence 
 
 ^Presland v. Bingham, L, R. 41 Ch. Div. 268. 
 '^Robeson v. Pittenger, 2 N. J. Eq. 57. 
 mayden v. Butcher, 31 N. J. Eq. 217. 
 
 *McCready v. Thomson, 1 Dudley, L. 131; Manier v. Myers, 4 B. Mon. 520; 
 ClawHon v. Primrose, 4 Del. Ch. 643.
 
 180 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 by the defendant, which would have closed up certain windows 
 of plaintiff's house.' 
 
 But in tliis country the doctrine of acquiring a right to lights 
 by prescription is not generally recognized.' 
 
 Thus the mere fact that an alley, which is not public, has re- 
 mained uninclosed and that a party not its owner has built a house 
 with doors and windows opening upon it and enjoyed the benefit 
 of the light and ventilation which it affords, conferred no right 
 upon such party to have it kept open.' 
 
 But the owner of a lot abutting on a public street in a city 
 has, as appurtenant to the lot, and independent of the own- 
 ership of the fee of the street, an easement in the street to 
 the full width thereof, for admission of light and air to his 
 lot, which easement is subordinate only to the public right in the 
 street. Whenever without his consent, and without compensation 
 to him, a railroad is laid and operated along the portion of the 
 street in front of his lot so as upon that part of the street to cause 
 smoke, dust, cinders, etc., which darken and pollute the air, com- 
 ing upon the lot from that part of the street, the lot owner may 
 recover whatever damages to his lot are thus caused by so laying 
 and operating the raih-oad.* 
 
 So the owner of a building has the right of easement of the 
 lio-ht from the street, and is entitled to damages from obstructions 
 caused by an elevated railroad ;' but not in New York by a surface 
 railroad, unless he own the fee in the street.' 
 
 But in Massachusetts it is recognized that the right to have land 
 unbuilt upon for the benefit of the light, air, etc., of neighboring 
 
 ^Sanhey v. St. Mary's Female Academy, 8 Mont. 265. See Siallard v. Cush- 
 incj, 76 Cal. 472; Lyo7i v. McDonald, 78 Tex. 71, 9 L. R. A. 295. 
 
 ^Poioell V. Sims, 5 W. Va. 1; Keiper v. Klein, 51 Ind. 316; Morrison v. Mar- 
 quardt, 24 Iowa, S5;Rlein v. Oehrung, 25 Tex. Supp. 232; Mullen v. Striek- 
 er, 19 Ohio St. 135; Huhhard v. Town, 33 Vt. 295; Pierre v. Fernald, 26 
 Me. 436; Richardson v. Pond, 15 Gray, 887; Hayden v. Butcher, 31 N. J. 
 Eq. 217; Parker v. Foote, 19 Wend. 309; Eaverstick v. Sipe, 33 Pa. 368; 
 Oilmore v. Driscoll, 122 Mass. 199; Napier v. Bulwinkle, 5 Rich. L. 311; 
 Ward V. Neal, 37 Ala. 501; Lapere v. Luckey, 23 Kan. 534. 
 
 Wexterv. Tree, 117 111. 532, 5 West. Rep. 897; Quest y. Reynolds, 68 111. 478. 
 
 '^ Adams v. Chicago, B. & N. R. Co. 39 Minn. 286, 1 L. R. A. 493; Oulf, C. & 
 S. F. R. Co. V. Fuller, 63 Tex. 467. 
 
 '^Pond V Metropolitan E. R. Co. 42 Hun, 567; Werfelman v. Manhattan B. 
 Co. (0. P.) 32 N. y. S. R. 682. 
 
 ^Fobes V. Rome, IF. & 0. R. Co. 121 N. Y. 505.
 
 Chap. X.] EASEMENTS OKEATED BY LICENSE. ISl 
 
 land, may be made an easement, witliin reasonable limits, by 
 deed.' 
 
 4. By License; Estoppel. 
 
 A license of the sole and exclusive privilege to shoot wild fowl 
 on the lakes and waters of grantor, with the privilege of ingress 
 and egress to and from the said lakes and waters, is a grant of a 
 profit a prendre^ and not a mere revocable license, and confines the 
 grantee to the places indicated in the grant, and does not author- 
 ize him to grant to others, indiscriminately, permits to exercise 
 the same privilege." A verbal agreement between several owners 
 of several tracts of land, by which each gives to the others a right 
 of way over his land, amounts to a mere license, revocable at the 
 will of either party.* 
 
 "When a rented field is accessible by a public road, permission 
 to use a shorter pathway through the lessor's other lands will not 
 be implied from its greater convenience ; and its use without ob- 
 jection is no more than a parol license, which is revocable at pleas- 
 ure ; but if the use of the pathway was a part of the contract, or 
 was held out as an inducement to the contract, the lessor would be 
 estopped from prohibiting its rightful use by the lessee or his serv- 
 ants.* While a general right, as by prescription, cannot be main- 
 tained by alleging and proving a particular or permissive right or 
 license,' and an easement implies an interest in the land in or over 
 which it is enjoyed,^ and a license carries no such interest, and is 
 revocable at common law at the will of the owner of the servient 
 estate,^ yet although this is the law in many of the States of the 
 Union, there is an exception to the rule in some of them in the 
 case of executed licenses, where the licensee has incurred expense 
 
 ^Ladd V. Boston (Mass. June 20, 1890) |34 N. E. Rep. 858; Salisbum y. An- 
 drews, 128 Mass. 336. 
 
 ^Bingham v. SaUne, 15 Or. 208. 
 
 ^Glark v. Oaffeney, 116 111. 363, 3 West. Rep. 581. 
 
 *Motes V. Bates, 80 Ala. 383. 
 
 ^Parish y. Kaspare, l09 Ind. 586, 7 West. Rep. 869; Pentland v. Keep, 41 
 Wis. 490; Chestnut Hill & S. H. Tump. Co. v. Piper, 17 Pa. 432. 
 
 'Rowbotham v. Wilson, 8 El. & Bl. 123. 
 
 ^Foster v. Browning, 4 R. I. 47; Ki/le v. Texas & N. 0. R. Co. (Tex. May, 
 1889) 4 L. R. A. 276, note; Cocker v. Coicper, 1 Cromp. M. & R. 418; 
 Veghte v. Baritan W. P. Co. 19 N. J. Eq. 153; Hill v. Cutting, 113 Mass. 
 107; mtcliens v. Shaller, 33 Mich. 496; Dodge v. McClintock, 47 N. H. 386; 
 Duinneen v. Bich, 23 Wis. 550, 558; Whitney v. Union R. Co. 11 Gray, 359.
 
 182 IMPOSED DUTIES, PERSONAL. [Part L 
 
 in the execution of the same, equity in such cases holding, for 
 purposes of remedy, that such shall be deemed an executed con- 
 tract.' Thus, while it is well established that a mere naked license 
 to use the land of another is revocable at the pleasure of the li- 
 censee, yet where a consideration has been paid, or value parted 
 with, on the faith that the license shall be perpetual, it cannot be 
 revoked to the injury of the licensee." An executed parol license 
 may become an easement upon the land of another, and may im- 
 pose a servitude on one tenant or estate in favor of another domi- 
 nant estate.' Where a parol license has been executed and acted 
 upon, and expense incurred in perfecting an easement over the 
 land of another in reliance on the license, it cannot afterwards be 
 revoked without placing the licensee in statu quo.* The defend- 
 ants erected and maintained gates at their own expense, upon the 
 faith of an agreement that they were to have a perpetual easement 
 to pass over the plaintiffs' lands. This agreement having been 
 fully executed and acquiesced in by the parties who made it for 
 more than thirty years, a court of equity will not now permit the 
 license to be revoked.^ A license founded on a consideration, 
 when possession had been taken under it, cannot be revoked.* 
 A license to use the fences and buildings of a trotting park for 
 advertising purposes, where the licensee expended $2,300 in erect- 
 
 ^Nowlin V. Whipple, 120 Ind. 596, 6 L. R. A. 159; Washb. Easem. 28; Hulme 
 V. Shreve, 4 N. J. Eq. 116; Vegkte v. Raritan W. P. Co. 19 N. J. Eq. 153; 
 Snowden v. Wilas, 19 Ind. 14; Van Ohlen v. Van Olilen, 56 111. 528; Parish 
 V. Kaspare, 109 Ind. 586, 7 West. Rep. 869; Stephens v. Benson, 19 Ind. 
 369; Wickersham v. Orr, 9 Iowa, 260; Beatty v. Gregory, 17 Iowa, 114; 
 Berick v. Kern, 14 Serg. & R. 267; Lacy v. Ar?ieU, 33 Pa. 169; Huff v. 
 MeCauley, 53 Pa. 206; Thompson v, McElarney, 82 Pa. 174. See also 
 Legg v. Horn. 45 Conn. 415; Butt v. Napier, 14 Bush, 39; Dempsey v. 
 Kipp, 61 N. Y. 462; Wiseman v. Lucksinger, 84 N. Y. 31; Cronkhitev. 
 Cronkhite, 94 N. Y. 323; Meek v. Breckenridge, 29 Ohio St. 642; United 
 States V. Baltimore & 0. R. Co. 1 Hughes, 138; Ellsworth v. Southern Minn. 
 B. E. Co. 31 Minn. 543; Batchelder v. Hibbard, 58 JST. H. 269; Lockha/rt 
 V. Oeir, 54 Wis. 133. 
 
 ^Snowden v. Wilas, 19 Ind. 10; Robinson v. Thrailkill, 110 Ind. 117, 8 West. 
 Rep. 556, and cases cited, 
 
 ^Dark v. Johnston, 55 Pa. 164; Washb. Easem. 24. 
 
 ''■Woodbury v. Parshley, 7 N. H. 237. 
 
 ^Nowlin V. Whipple, 120 Ind. 596, 6 L. R. A. 159. 
 
 ^Parish v. Kaspare, 109 Ind. 586, 7 West. Rep. 369; Burrow v. Terre Haute 
 & L. B. Co. 107 Ind. 432, 5 West. Rep. 626, and cases cited; Simons 
 V. Morehouse, 88 Ind. 391; Nowlin v. Whipple, 79 Ind. 481; Rogers v. Cox, 
 96 Ind. 157, 49 Am. Rep. 152; Snowden v. Wilas, 19 Ind. 10.
 
 Ohap. X.] EASEMENTS CREATED BY LICENSE. 183 
 
 iiig fences for such use, is irrevocable.' When a party relies upon 
 expenditure upon the faith of a license, as an estoppel, the evi- 
 dence of the facts constituting the estoppel should be clear, and 
 the expenditure should not be trivial in amount.' An estoppel 
 in pais can never operate to prejudice the rights of the person 
 estopped, except when the sole deed of such person would have a 
 similar operative effect.' The doctrine of estoppel only avails 
 one who, acting with due care and caution, has been induced to 
 do, or refrain from doing, some act by the acts or representations 
 of another, made when known to be false and for the purpose of 
 bringing about such a result.* Where one states a thing to an- 
 other with a view to the other's altering his position, then the 
 person to whom the statement is made is entitled to hold the other 
 bound, and, the matter is regulated by the state of facts as ira- 
 ported by the statement.* The owner of land upon which is an 
 apparent way may be estopped to deny the easement by repre- 
 senting the way to be such to one about to purchase, when in the 
 faith of such statement he purchases adjoining land to which 
 such way is an outlet* Even silence, when the rights of the pub- 
 lic are involved, will, so far as their interests are to be affected, 
 amount to an irrevocable license. Thus a land owner who stands 
 by without demanding compensation, until a railroad company has 
 30 far completed and put in operation its railroad over his land as 
 to involve the public interest, can neither enjoin the company nor 
 maintain ejectment ; his only remedy is an action for damages.^ 
 Parties may be as completely estopped by their conduct to deny 
 
 ^WillovgJiby v. Lawrence, 116 111. 11, 3 West. Rep. 472. 
 
 ^McCarthy v. Mutual Relief Asso. 81 Cal. 584. 
 
 ^Henry v. Sneed, 99 Mo. 407. 
 
 *Bank of Hindustan v. Allien, L. R. 6 C. P. 54; Staee & Worth's Case, L. R. 
 4 Cb. 682; Liverpool Wharf Co. v. Prescott, 7 Allen, 494; Plumerv. Lord, 
 9 Allen, 455; Langdon v. Doud, 10 Allen, 433; Andrews v. Lyons, 11 
 Allen, 349; Turners. Coffin, 12 Allen, 401; Murse v. JVourse, 116 Mass. 
 101. 
 
 ^Conrow v. Little, 115 N. Y. 387, 5 L. R A. 693. 
 
 ^Pitcher v. Dove, 99 Ind. 177. See also McKimie v. Elliott (111. June 12, 1890) 
 24 N. E. Rep. 965; Devonshire v. Eglin, 14 Beav. 530; Williams v. Jersey 
 Craig & Ph. 91; Tarrant v. Terry, 1 Bay, 239; Rowbotham v. Wihon, 8 
 El. & Bl. 145. See, as to estojipel from executed licenses, Le Fevre v. 
 Le Fevre, 4 Serg. & R. 241 ; Short v. Taylor, 2 Eq. Cas. Abr. 522. 
 
 ''Louisville, N. A. & C. R. Co. v. Beck, 119 Ind. 124,
 
 184 IMPOSED DUTIES, PEKSONAL. [Part L 
 
 an easement,' as by the recitals in a deed/ An easement may 
 be created by estoppel, even if a plat had never been acknowledged 
 or recorded, and there had been no right by prescription or dedi- 
 cation.' The sale of a house fronting on an open strip of land 
 belonging to the vendor makes that strip of land a highway/ The 
 rights created by the plat must be ascertained exclusively from the 
 plat, and cannot be enlarged or diminished by the parol construc- 
 tion of those who made it/ An agreement made between adjoin- 
 ing owners in relation to a party-wall erected on the division line 
 of their lots is binding on the parties, and creates an equitable 
 charge, easement and servitude upon the lots built u]3on/ It 
 creates an easement which runs with the land, from privity of es- 
 tate; but a stipulation that the adjoining owner pay one half the 
 cost is a personal covenant, enforceable only by the covenantee/ 
 The terms of the license, whether revocable at pleasure or intended 
 to run for life, and the acts and evidence of part performance, as 
 being in execution of a complete and fully understood agreement^ 
 must be clear, definite and certain in their object and design/ 
 
 Expenditures made on land under a license, if of such a nature 
 as create an equity in favor of the licensee, entitling him to the 
 irrevocable enjoyment of the easement and "benefit of his expendi- 
 
 ^ Chicago v. Wright, 69 111. 318; Kane County v. Herrington, 50 111. 233; Hyde 
 
 Park V. Borden, 94 111. 36; Curry v. Mt. Sterling, 15 111. 330. 
 ^Illinois Ins. Co. v. Littlefield, 67111. 368; Pinckard v. Mibnine, 76 111. 453; 
 
 By7'ne v. Morehouse, 22 111. 603; Morgan v. Moore, 3 Gray, 319; Sheen v. 
 
 Stothart, 29 La. Ann. 630; Bigelow, Estop. (3d ed.) 306. See Eueckenv. 
 
 Voltz, 110 111. 265; Winthrop v. Fairbanks, 41 Me. 307; Kent v. Waite, 10 
 
 Pick. 138; Mendell v. Delano, 7 Met. 176; 3 Washb. Real Prop. (4tli ed,) 
 
 440 et seq. 
 *ZearingY. Ruber, 74 111. 409; Farnsioorth v. Taylor, 9 Gray, 166; Badgers 
 
 V. Parker, 9 Gray, 445; Kirkpatrick v. Bi'own, 59 Ga. 450; Goddard, 
 
 Easem. (Bennett'.s ed.) 95; Washb. Easem. (3d ed.) 96; Livingston v. 
 
 Mayor, 8 Wend. 98; 2 Smith, Lead. Cas. (7tli Am. ed.) 154; Fox v. Union 
 
 Sugar Refinery, 109 Mass. 292; Child v. Chappell, 9 N. Y. 246, 257. 
 ^Woodyer v. Hadden, 5 Taunt. 137. 
 ^Diedrich v. Northwestern XT. B. Co. 43 Wis. 248; Preston v. Navasota, 34 
 
 Tex. 684. 
 ^Keating v. Korfhage, 88 Mo. 534, 4 West. Rep. 569. 
 •'Euling v. Chester, 19 Mo. App. 607, 2 West. Rep. 175. 
 ^Wiseman v. Lucksinger, 84 N. Y. 31; Wheeler v. Beynolds, 66 N. Y. 237; 
 
 Thompmn v. McELarney, 83 Pa. 174; Cronkhite v. Cronkhite, 94 N. Y. 333; 
 
 Washb. Easem. 30; Butt v. Napier, 14 Bush (Ky.) 39; Dempsey v. Eipp, 
 
 61 N. Y. 463; Huff v. McCauley, 53 Pa. 306; Legg v. Horn, 45 Conn. 415; 
 
 Meek v. Breckenhridge, 39 Ohio St. 643; United States v. Baltimore <& 0. 
 
 R. Co. 1 Hughes, C. C. 138.
 
 Chap. X.] EASEMENTS CREATED BY LICENSE. Ib5 
 
 tures, attach only to liim personally and cannot, like an easement 
 acquired by grant, be claimed by his assignees ; ' and a right rest- 
 ing on a license determines on sale of the estate.' It is not as- 
 signable." 
 
 In Boot V. Wadhams, 107 N. Y. 3S4, 9 Cent. Eep. 874-, the 
 facts were these : About 1860, Bradbury, who was then the owner 
 of the premises now owned by defendant, on which there is a 
 spring, gave Beebe, the owner of adjoining premises, parol license 
 to lay a pipe from the spring to his (Beebe's) house, and conduct 
 water therein, for an annual charge, but refused to sell or convey 
 any right to so do. Beebe put such pipe down and thereafter 
 Merchant, who then owned the premises on the other side of 
 Beebe's land from Bradbury's, being the premises now owned by 
 plaintiff, with the parol consent of Bradbury and Beebe laid a pipe 
 from his (Merchant's) house to Beebe's and took the surplus water 
 coming from the pipe there. In 18G5 Bradbury became the owner 
 of said premises now owned by plaintiff, and thereafter a tenant 
 of his, by his direction, connected the pipe running from the spring 
 to Beebe's house with the pipe on the premises now owned by 
 plaintiff, making a continuous line, with a branch pipe at Beebe's 
 house. This pipe was in use in 1870, when Bradbury conveyed 
 the premises now owned by plaintiff to one Rowley, who there- 
 after conveyed to the plaintiff ; the deeds conveyed the premises 
 " with the appurtenances thereto belonging." Bradbury continued 
 to own the land containing the spring down to his death in 1882, 
 when it was conveyed by his representatives to the defendant, who 
 cut off the pipe which had been in use up to that time ; where- 
 upon plaintiff brought this suit to enforce her alleged right to the 
 use of the water and to enjoin interference with the pipe. The 
 trial judge found that the use of the pipe was necessary to the en- 
 joyment of the plaintiff's premises, but also found that the prem- 
 ises could have been supplied by a well, and gave judgment for 
 the plaintiff. On appeal this was reversed, it being there ruled, 
 
 ^BraMy v. Sharp, 9 N. J. Eq. 9; 2 Smith, Lead. Cas. 736. 
 
 ^Jackson v. Babcock, 4 Johns. 419; Ilunlington v. Asher, 96 N. Y. 612; Wallia 
 V. Harrison, 4 Mees. & W. 538; Hills v. Miller, 3 Paige, 254, 257, 3 N.Y. 
 Ch. L. ed. 141, 144. 
 
 ^Wolfe V. Frost, 4 Sandf. Ch. 72, 7 N. Y. Ch. L. ed. 1037; Mumford v. Whit- 
 ney, 15 Wend. 380; Ex parte Coburn, 1 Cow. 568.
 
 186 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 upon the facts, that there was nothing but a mere parol license 
 proved from the grantor of defendant, and that the right to take 
 or convey water from the defendant's premises did not pass to the 
 plaintiff by the use of the word "appurtenances" in any of the 
 deeds to her or her grantors, nor did such a right pass as an ease- 
 ment by implication, the New York courts treating the title, "con- 
 tinuous easements," as equivalent to the words "self-perpetuating, 
 independent of human intervention ; " ' whereas, in some other 
 States and in England water supplied from a tank through pipes 
 is held to be a continuous easement." 
 
 If the owner having the enjoyment of water, light, air or way 
 exclude himself from the use by his voluntary act, he cannot, after 
 the use has become valuable to someone else, or would by its re- 
 sumed use cast a burden upon another, assert his right to the use. 
 In Lampman v. Milks, 21 N. T. 505, the original owner of the 
 land across which a stream flowed, diverted the stream through an 
 artificial channel so as to relieve a portion of the land formerly 
 overflowed by the stream ; and that portion of the land he after- 
 wards conveyed to a third party. The court held that neither he 
 nor his grantees of the residue of the land could return the stream 
 to its ancient bed, to the damage of the first grantee. The land 
 which the owner conveyed after he had diverted the channel of 
 the stream would have become worthless by being overflowed if 
 he or his grantees of the remaining portion had been permitted to 
 return the stream to its original channel. The court held that 
 under such circumstances the owner in conveying the premises 
 thus relieved from overflow charged the remaining portion of the 
 premises with the servitude of submitting to the stream running 
 through their lands. In the course of the opinion in that case the 
 learned judge distinguished between those easements which are 
 continuous, that is self-perpetuating, independent of human inter- 
 vention, and those which are termed discontinuous easements, the 
 enjoyment of which can be had only by the interference of man, 
 such as rights of way or a right to draw water. In regard to such 
 
 1 See also Lampman v. Milks, 21 N. Y. 505. 
 
 ^Kelly V. Dunning, 43 N. J. Eq. 62; De Luze v. Bradbury, 25 N. J. Eq. 70. 
 
 See JSeymouTY. Lewis, 13 N. J. Eq. 439; La. Civ. Code, arts. 716-723; 
 
 Polden V. Bastard, 4 Best & S. 258, 264; Pyer v. Carter, 1 Hurl. & N. 
 
 916; Ewart v. Cochrane, 7 Jur. N. S. 925; Washb. Easem. 576.
 
 CJhap. X.] EASEMENTS CREATED BY LICENSE. 187 
 
 latter kind of easements, upon a severance of tenements l)y tlie 
 owner, they only pass which are absolutely necessary to the enjoy- 
 ment of the property conveyed. 
 
 In Curtiss v. Ayrault, 47 N. Y. 75, the same general doctrine 
 is held. In that case it appeared that a marsh had been drained 
 by the owner of the whole tract by digging a ditch which carried 
 the water to other portions of the tract, where it made a perma- 
 nent channel in which the water, gathered in the marsh, flowed 
 in a continuous stream, thus mutually benefiting the lands drained, 
 and the lands through which a supply of good water was thereby 
 -conveyed. The owner of the property, while these reciprocal bene- 
 :fit8 and burdens were in existence, and apparent, divided the tract 
 into parcels and conveyed the parcels to different grantees, who 
 contracted with reference to the then open and apparent condition 
 of the land ; and it was held that such condition was essential to 
 the enjoyment of all the lands, and especially to that portion which 
 by the digging of the ditch had been drained and made good avail- 
 able land. 
 
 So where one excludes his own air and light by a solid wall.' 
 So if the license is to do an act on the licensee's land, which will 
 destroy the enjoyment, on the licensor's land, of an easement, the 
 licensor cannot revoke the license after the act is done. But the 
 doctrine does not include natural easements, as the diversion of 
 water on licensee's land, preventing its natural flow upon the li- 
 censor's grounds, thus creating an easement on the licensee's land. 
 The doctrine only extends to enforcing the continuance of a vol- 
 untary surrender of an easement by the licensor in the licensee's 
 land.^ But if the act licensed to be done is only in effect a tem- 
 porary suspension of the enjoyment of the easement, the right to 
 the latter will revive on the effect of the act disappearing, and the 
 act cannot be repeated except on a new license therefor.' Of 
 course the act licensed can only act upon the interest of the licensee 
 in the property to which the relinquished easement belongs.* If 
 
 ^Dyer v. Sanford, 9 Met. 395; Moore v. Bawson, 3 Barn. & C. 332. 
 
 ^Washb. Easem. 727; Liggins v. Inge, 7 Bing. 682; Morse v. Copeland, 3 
 Gray, 303; Elliott v. Rhett, 5 Rich. L. 405, 418, 419; Davies v. Marn/iall 
 9 Week. Rep. 866; Winter v. Brockwell, 8 East, 308; Whit net/ v. Union 
 R. Co. 11 Gray, 359; Hodgkim v. Farrington, 150 Mass. 19, 5Ii. R. A. 200. 
 
 » *Dyer v. Sanford. 9 Met. 395.
 
 188 IMPOSED DUTIES, PERSONAL. [Part I^ 
 
 the act licensed is intended to be executed on the land of a third 
 person, after its execution the license cannot be revoked.' Wliere 
 the way is claimed by license or permission only, the burden of 
 establishing it is on the party asserting it.* 
 
 5. By Custom. 
 
 Easements may have their origin in particular customs, the re- 
 mains of the local customs out of which Alfred first collected the 
 rules of the common law. These customs are local to particular 
 counties, cities, towns and manors, and are not extended to any 
 large division, as a State or country, as the public cannot claim 
 an easement by prescription or custom, though individual inhabi- 
 tants of towns may, as may corporations.' A right of recreation 
 by custom upon the land of another cannot exist as a right in the 
 public generally, but must be confined to the inhabitants of a par- 
 ticular district." Even if riparian owners may be able to estab- 
 lish a private right of way over a non-navigable stream, or a right 
 of boating for recreation for themselves and their friends by cus- 
 tom, the existence of such a right or custom, if established, would 
 not entitle the public to boat on the river, or support the claim 
 that it was a highway.' Custom and prescription extend gener- 
 ally to the same subject-matters,* but the former does not extend 
 to Q. profit d prendre — that is, the right to take a part of the soil 
 or produce of the land.' These local customs are the rules which 
 are not written, and which men have used for a long time, sup- 
 porting themselves by them in the things with respect to which 
 
 ^Gurthy. Noonan, 10 Allen, 406; Washb. Easem, 729. 
 
 ^Perrin v. Oarfield, 37 Vt. 304; Curtis v. Angier, 4 Gray, 547; Barnes v. 
 Haynes, 13 Gray, 188; Brace v. Yale, 10 Allen, 441; Mainon v. Greigh, 37 
 Conn. 463; Hammond\. Zehner, 21 N. Y. 118; Dreweit v. Sheard, 7 Car. 
 & P. 465. 
 
 n Bl. Com. 67; Strothery. Lucas, 37 U. S. 12 Pet. 446, 9 L. ed. 1151; Gin- 
 cinnaiiv. White, 31 U. S. 6 Pet. 436, 8 L. ed. 455; Gurtis v. Keesler, 14 
 Barb. 511; Post v. Pearsall, 22 Wend. 435, 432; Pearsall v. Post, 20 Wend. 
 Ill, 128; Manning y.Wasdale, 5 Ad. & El. 758; Gardiner v. Tisdale, 3 
 Wis. 153; Merwin v. Wheeler, 41 Conn. 14; State v. Wilson, 42 Me. 9; 
 Bodfish V. Fox, 23 Me. 95. 
 
 4 ^Bourke v. Davis, L. R. 44 Ch. Div. 110. 
 
 ^Cortelyon v. Van Brundt, 2 Johns. 357. 
 
 "'Huntington v. Asher, 96 N. Y. 610; Waters v. Ltlley, 4 Pick. 145; Post v. 
 Pearsall, 22 Wend. 425.
 
 Chap. X.] EASEMENTS CREATED BY CUSTOM. 189 
 
 • 
 
 they have exercised them.' Customs must be local and affirmed of 
 something beneficial to the inhabitants of a locality ; and they need 
 not, like prescriptions, have a lawful beginnino^, there being no 
 one capable of taking the privilege by way of grant ;" immemorial ; 
 continued — the right uninterrupted; peaceable — acquiesced in; rea- 
 sonable — no sufficient legal reason be assignable against the cus- 
 tom ; * certain — ascertained or ascertainable ; * compulsory — not 
 left to one's option to use or not to use, and consistent with each 
 other, for if not they could never have secured assent. If the 
 custom be in derogation of the common law it is strictly con- 
 strued.' There are few local customs existing in the States of 
 .the Union upon which easements can be rested. 
 
 ^Sirother v. Lucas, 37 U. S. 12 Pet. 446. 9 L. ed. 1151. 
 
 ^Lockwood V. Wood, 6 Q. B. 50, 64; Perley v. Langley, 7 N. H. 233. 
 
 'Merioin v. Wheeler, 41 Conn. 14. 
 
 ^Selby V. Robinson, 2 T. R. 758. 
 
 n Bl. Com. 76-79; Anderson, Law Diet. 303; Fitehv. Baicling, 2H. Bl. 393; 
 Mounsey v. Isinay, 1 Hurl, & C. 729; Lindsay v. Cusimano, 12 Fed. Rep. 
 506; Bell ^.Warden, Wlllcs, 203; Jones v.Percival,5 Pick. 485; Sowerby 
 V. Coleman, L. R. 2 Exch. 99; Codman v. Evans, 5 Allen, 3i0.
 
 CHAPTER XL 
 
 LATERAL SUPPORT TO SOIL AND PARTY-WALL. 
 
 Sec. 18. Beciprocal Easement of Lateral Support. 
 Sec. 19. Party-Wall. — Easement of Support. 
 
 a. Title in Party- Wall and Right to Strengthen and Elevate. — 
 
 Contribution for Repair. 
 
 b. Destruction of Party- Wall. 
 
 c. Covenants Respecting Party-Walls. — Personal Covenants and 
 
 Tliose Running with the Land. 
 
 d. Liability for Accidental or Negligent Injury in Constructing y 
 
 Elevating or Repairing Party- Wall, 
 
 Section 18. — Reciprocal Easement of Lateral Sup- 
 port. 
 
 There is, as incident to land, in its natural condition, a right to 
 support from the adjoining land; and if land not subject to artifi- 
 cial pressure sinks or falls away, in consequence of the removal of 
 such support, the owner is entitled, not to the cost of restoring the 
 land to its former condition or situation, or of building a wall to 
 support it, but to the diminution in value of the land by reason 
 of the acts of the party removing the support.* 
 
 It is provided : " Si quis sepem ad alienum prcedium fixerity 
 infoderitque. terminum ne excedito : si maceriam, ^edem relin- 
 quito: si vero domum., jpedes duos: si sepulchrum aut scrohem 
 foderit, quantum jprofunditatis hcd)uerint tantutn sjpatii relirir 
 quito : siputeum,passus latitudinem.r^ (If anyone builds a fence 
 near the field of another and digs up the meadow, he must not go 
 beyond the boundary ; if he digs near the inclosure, he must leave 
 a foot ; if near a house, two feet ; if he digs a grave or trench, he 
 should leave as great a space as their own width is ; if a well, he 
 should leave a pace.) The Code Kapoleon likewise recognizes 
 
 ^Moellerinff v. Evans, 121 Ind. 195, 6 L. R. A. 449; 3 Sutherland, Dam. 
 pp. 417. 418; McGuire v. Orant, 25 N. J. L. 356; Oilmore v. DriscoU, 122 
 Mass. 199; Humphries v. Brogden, 12 Q. B. 739; Northern Transp. Co. v. 
 Chicago, 99 U. S. 635, 25 L. ed. 336; Mamer v. Lussem, 65 111. 484. 
 
 »Just. Dig. lib. X. tit. I. Finium Begundorum, § 13.
 
 Chap. XL] ' RECIPROCAL EASEMENT OF LATERAL SUPPORT- 191 
 
 the support to which the owners of adjoining lands are recipro- 
 cally entitled. Thus : " He who causes a well or a cesspool to be 
 dug near a wall, partition or not; he who wishes a chimney to be 
 built there, or a hearth, or oven, or a kiln ; to build a stable against 
 it, or to form against such wall a magazine of salt, or a heap of 
 corrosive substance, — is obliged to leave the distance prescribed 
 by particular regulations and usages on subjects, or to form the 
 works prescribed by the same regulations and usages, in order to 
 avoid injury to his neighbor."* 
 
 On the subject of easements of lateral support it was resolved 
 by the judges in Palmer v. Fleshees^ 1 Sid. 167, where the action 
 was for stopping up lights, that if a man, being seised of land, 
 leases forty feet to A to build a house thereon, and forty feet to 
 B for a like purpose, and one of them builds a house and then the 
 other digs a cellar upon his land which causes the wall of the first 
 adjoining house to fall, no action will lie, for everyone may deal 
 with his own to his best advantage. But, semhle, it would be 
 otherwise if the wall or house were an ancient one. That if a 
 man, having a piece of land, build a house on part of it and lease 
 the house to one, and the other part of the land to another, 
 neither the lessor nor anyone claiming under him can stop up the 
 lights, for otherwise it would be in the power of the lessor to 
 frustrate his own grant." On the same principle it is ruled that 
 if an improvement constructed over, under or upon one parcel 
 of land, for the convenient use or enjoyment of another contigu- 
 ous parcel, by the owner of both, be open, visible and permanent 
 in its character, and of such a nature as does not require the act 
 of man to perfect or indicate its use; and the owner alienate the 
 latter parcel, — the use of such improvement will pass as an ease- 
 ment. And so a devise of a house, access to the second story of 
 which was had by a stairway in the adjoining house, next to the 
 partition wall, where both were owned by the testator, carried the 
 right to the use of the stairway.' And in Palmer v. Fleshees, supra, 
 it is said : '■^ Aliter^ if the land adjoining the house is the land of a 
 stranger, for the latter may build on his own land and the owner 
 
 'Code Civil, liv. II. tit. IV. chap. ii. art. 674. 
 
 ^United States v. Appleton, 1 Sumn. 492; Havens v. Klein, 51 How. Pr. 
 
 82; Bennyson's App. 94 Pa. 147. 
 ^EoweU V. EisUs, 71 Tex. 690.
 
 192 IMPOSED DUTIES, PERSONAL. " [Part I. 
 
 of the first house will be without remedy, unless such house were 
 an ancient house and the lights ancient lights." The case does not, 
 however, say what length of time will constitute a house or lights 
 "ancient," nor does it touch the subject of presumption. The 
 first question involving directly the subject of support is shortly 
 stated in Selwyn's Nisi Prius, Vol. I., page 145, from the manu- 
 serij^t of Mr. Jtistice Lawrence. In Stansell v. Jollard, 1 Selwyn, 
 N. P. 435, in 1803, in an action on the case for digging so near a 
 cable under the house of the plaintiff let to a tenant, that it fell, 
 Lord Ellenborough held that where, as in the case before the 
 court, a man had built to the extremity of his soil and had en- 
 joyed his building above twenty years, by analogy to the case of 
 lights, etc., he had acquired a right to support, or, as it were, a 
 leaning to his neighbor's soil, so that his neighbor could not dig so 
 near as to remove the support, but that it was otherwise of a 
 house, etc., newly built." This case* has since been questioned in 
 the case of Solomon v. Vintners Co.^ 4 Hurl. & N. 585, 28 L. J. 
 N. S. Exch. 370. 
 
 In Massey v. Goyner, 4 Car. & P. 161, the grievance com- 
 plained of was the taking down an adjoining building and dig- 
 ging the foundations of the new building to be erected in its 
 place, without giving due and proper notice to the plaintiff, the 
 owner of the adjoining house, so as to give him an opportunity 
 of taking precautionary measures, as also in respect of negligence 
 in taking down the first building, and in excavating ; it was there 
 held by Tindal, Ch. t/!, that if the defendants had used reasonable 
 and ordinary care in the doing of the work, having given due 
 notice to the plaintiff, they would not be answerable in point of 
 law for damage caused to plaintiff's premises. 
 
 In Brown v, Windsor, 1 Cromp. & J. 20, which was an action 
 for excavating under defendant's wall, on which the plaintiff's 
 house, built 27 years before, rested, the complaint was of negli- 
 gence in the manner in which the work had been carried on, be- 
 sides which there was proof that the defendant had expressly 
 authorized the resting of the plaintiff's house on his wall. 
 
 In Dodd V. Holme, 1 Ad. & £1. 493, the question on which 
 the decision turned was also the allegation and proof of negli- 
 gence. In Peyton v. London, 9 Barn. & 0. 729, the cause of
 
 •Chap. XL] KECIPKOOAL EASEMENT OF LATERAL SUrPOKT. 193 
 
 ■action relied on was that the defendant, by taking dowu his liouse 
 adjoining that of the plaintijff, without shoring up, had injured 
 plaintiffs liouse. It was held that as the plaintiff had not alleired 
 or proved any right to have his house supported by the defend- 
 ant's house, defendant was not liable for what had happened. 
 There was no question as to support from the adjoining soil in 
 Walters v. -Pfeil, Moody & M. 362, as the complaint was for 
 negligence in taking down defendant's house, whereby tlie plain- 
 tiff's house was injured. 
 
 Wi/att V. Harrison, 3 Barn. & Ad. 871, decided that the owner 
 of a house recently erected on the extremity of his land could not 
 maintain an action against the owner of adjoining land for digging 
 on his own land so near to plaintiff's liouse that the house fell 
 down ; but the reason given is that the plaintiff could not. by put- 
 ting an additional weight upon his own land and so increasing the 
 lateral pressure upon this land, render unlawful any operation on 
 the defendant's land which before would have caused no damaire : 
 and the court intimated in their opinion that an action would be 
 maintainable, not only if the defendant's digging would have 
 made plaintiff's land crumble down, unloaded by any building, 
 but even if the house had stood 20 years. "Where a house has 
 been supported more than 20 years, by land belonging to another 
 projDrietor, with his knowledge, and he digs near the foundations 
 of the house, whereby it falls, he is liable to an action at the suit 
 of the owner of the house.' Althougli there may be some diffi- 
 culty in discovering when the grant of an easement in respect to 
 a house is to be presumed, as the owner of the adjoining land 
 cannot prevent its being built, and is not able to disturb the en- 
 joyment of it without most serious loss or inconvenience to him- 
 self, the law favors preservation of the enjoyment of it, acquired 
 by the labor of the claimant and acquiesced in by another who 
 has the power to interrupt it, and, as on the supposition of a grant, 
 the right to the light may be given from not erecting a wall to 
 obstruct it, the right to support for a new building erected near 
 the extremity of the owner's land may be explained on the same 
 principle. 
 
 The Court of Exchequer, in Partridge v. Soott, 3 Mees. & 
 
 ^Stansell v. Jollard, 1 Selwyn, N. P. (11th ed.) 457; Hide v. Tliornboi-ough, 
 2 Car. & K. 250. 
 13
 
 194 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 W, 220, concurred in the law above laid down that the right to 
 support of the foundation of a house from adjoining land belong- 
 ing to anotlier proprietor can only be acquired by grant, and that, 
 where the house was built on excavated land, a grant is not to be 
 presumed till the house has stood 20 years after notice of the ex- 
 cavation to the person supposed to make the grant ; but nothing 
 was decided excepting the right to support which land, while it 
 remains at its natural state, has been said to be entitled to from 
 the adjoining land of another proprietor. Some land of the plain- 
 tiff's, not covered with buildings, likewise sank in consequence of 
 defendant's operations on his own land ; but the court directed a 
 verdict to be entered for defendant, and, indeed, the whole decla- 
 ration seems to show the sinking of plaintiff's land was consequen- 
 tial upon the fall of the house, which would not have taken place 
 if his own land had not been excavated. The judges in the Ex- 
 chequer Chamber held, upon a writ of error from the Court of 
 Common Pleas, in Chadwick v. Trower, 6 Bing. N. C. 1, that the 
 mere circumstance of juxtaposition does not render defendant, 
 liable if he pulls down his wall without giving notice of his inten- 
 tion to the owner of the wall which rests upon it, and that he is 
 not even liable for carelessly pulling down the wall if there was 
 notice given to the owner of the adjoining wall ; but this does not 
 depend upon want of allegation, or prove the right of plaintiff to 
 have the wall supported by defendants, and does not touch the 
 rights or obligations of conterminous proprietors, where the tene- 
 ment to be supported remains in its natural condition. 
 
 Brown v. Rohins, 4 Hurl. & IT. 186, was an action for exca- 
 vating beneath land adjoining plaintiff's house and so causing th& 
 fall of the house which had been built on land previously exca- 
 vated beneath the surface, and which the defendants knew to have 
 been so excavated. Upon the express finding of the jury that the 
 land would have equally sunk if no building had been superadded 
 to its weight, plaintiff was held entitled to recover. 
 
 In excavating near a modern house, if the mere removal occa- 
 sions the damage, no liability is incuri-ed, however negligently the 
 act may be performed ; but if the manner of the removal extends 
 the act beyond the limits of the owner's property so as to become 
 a trespass upon the plaintiff's land, a liability is incurred.* 
 
 1 Gale, Easem. (5th ed. by Gibbons) 446, note.
 
 Chap. XL] RECIPKOCAL EASEMENT OF LATERAL SUPPOHT. 195 
 
 In this country, Thurston v. Hancock^ 12 Mass. 221, decided in 
 1815, is a leading American case on the subject of injury to ad- 
 joining property by removal of the soil supporting it. The plain- 
 tiff in that case, in 1S02, bouglit a parcel of hind upon Beacon Hill 
 in Boston, bounded on the west by lands of the Town of Boston, 
 and, in 1804, put a dwelling-house thereon with a rear of two feet 
 from his boundary, and its foundation 15 feet below the ancient 
 surface of the land. The defendants, in ISll, took the deed of the 
 adjoining land from the town and began to dig and remove the 
 earth thereon, and, though notified by plaintiff that his house was 
 endangered, continued to do so to a depth of 45 feet, and within 
 six feet of plaintiff's house, and thereby caused part of the eartli 
 on plaintiff's land to fall aM'ay and slide upon the defendant's land, 
 rendering the foundations of plaintiff's house insecure and tlie 
 occupation thereof dangerous, so that he was obliged to abandon 
 it. The court, upon review of the earlier English authorities, 
 held that the plaintiff could recover for the loss of or injury to the 
 soil, merely, and not for the damage to the house, and Chief Jus- 
 tice Parker, in delivering the judgment, said : " It is a common 
 principle of the civil and of the common law that the proprietor 
 of land, unless restrained by covenant or custom, has the entii'e 
 dominion, not only of the soil, but of the spa,ce above and below 
 the surface to any extent he may choose to occupy it. The law, 
 founded upon principles of reason and common utility, has ad- 
 mitted a qualification to this dominion restricting the proprietor 
 so to use his own as not to injure the property or impair any 
 actually existing rights of another. ' SIg uiere tuo ut alienum 
 nonlcedas. . . .' But this subjection of the use of a man's property 
 to the convenience of his neighbor is founded upon a supposed 
 pre-existing right in his neighbor to have and enjoy the privileges, 
 which by such act is impaired. ... A man in digging upon his 
 own land is to have due regard to the position of his neighbor'^ 
 land and the probable consequences to his neighbor if he digs too 
 near his line, and if he disturbs the natural state of the soil, he 
 shall answer in damages ; but he is answerable only for the natural 
 and necessary consequences of his act, and not for the value of 
 the house put upon or near the line of his neighbor." Plaintiff 
 in that case built a house within two feet of the westerly line of
 
 196 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 the lot in a town where those who should hold under it had a 
 right to build equally near the line or to dig down into the soil 
 for any other lawful purpose. He knew also the shape and nature 
 of the ground, and that it was impossible to dig there without 
 causing excavations ; he built at his peril ; for it was not pos- 
 sible for him merely by building upon his own land to deprive 
 another party of such use of his as he should deem most advan- 
 tageous. There was no right acquired by ten years' occupation 
 to keep his neighbor at a convenient distance from him. It was, 
 in fact, damnum ahsque injuria. Upon the facts of the case the 
 court held plaintiff was not entitled to recover any damages for 
 the fall of his house, but might recover for the injury to the soil. 
 
 The law, founded upon principles of reason and common util- 
 ity, has admitted a qualification to the absolute dominion of the 
 proprietor of land over it, restricting him to so use his own as not 
 to injure the property or impair any actually existing right of 
 another. The unqualified rule that for any injury resulting to 
 the soil from removal of the natural support to which it is en- 
 titled, by means of excavations on an adjoining tract, the owner 
 has an action against the party by whom the mischief is caused, is 
 limited to injuries caused to the land itself, and does not afford 
 relief for damages by the same means to artificial structures ; and 
 for an injury to buildings, inevitably incident to a depression or 
 sliding of the soil on which they stand, caused by the excavation 
 of a pit on adjoining land, an action can only be maintained where 
 want of due care and skill or positive negligence in the method of 
 doing the act is attributed to it. Liability will be incurred, how- 
 ever, on the ground of negligence in not taking reasonable care to 
 prevent injury.* 
 
 In Panton v. Holland, 17 Johns. 92, the plaintiff was the owner 
 
 of a house and lot on Warren Street in the City of New York, 
 
 and the defendant, in erecting a house on the lot contiguous to 
 
 plaintiff's, in order to lay the foundation, dug some distance below 
 
 the foundation of plaintiff's house, in consequence of which one 
 
 of the corners of plaintiff's house settled, the walls were cracked 
 
 and the house in other respects injured. Evidence was produced 
 
 on the part of plaintiff to show want of proper care and skill in 
 
 ^Panton v. Holland, 17 Johns. 92; Lamia v. Holirook, 4 Paige, 169, 3 N. Y. 
 Ch. L. ed. 390. See also ante, p. 38, note 1.
 
 Chap. XI.] RECIPROCAL EASEMENT OF LATERAL SUPPORT. 107 
 
 the persons employed by defendant to lay his fonndation. A 
 number of witnesses were then produced on the part of defend- 
 ant to prove that a due degree of care and diligence had been 
 employed in laying his foundation for the purpose of preventing 
 any damage to plaintiff's house. The jury were directed to find 
 a verdict for plaintiff for the difference in the value of the house 
 before the injury and afterwards. This was held to be incorrect ; 
 that there should be no recovery unless it be on the ground of 
 negligence in not taking reasonable care to prevent the injury, 
 and this was a question of fact which should have been submitted 
 to the jury. 
 
 In Foley v.Wyeth^ 2 Allen, 131, the decision in Thurston v. 
 Hancock, sxijpra, was followed and affirmed. And the court, after 
 stating that the right of support from adjoining soil, for land in 
 its natural state, stands in actual justice and is essential to the pro- 
 tection and enjoyment of the property and as a right of the 
 property which passes with the soil without any grant for the pur- 
 pose, said : " It is a necessary consequence from all these principles 
 that, for any injury to his soil resulting from the removal of the 
 natural support to which it is entitled, by means of an excavation 
 of the adjoining tract, the owner has a legal remedy in an action 
 at law against the party by whom the work has been done and the 
 mischief thereby occasioned. This does not depend upon negli- 
 gence or unskillfulness, but upon the violation of the right of 
 property which has been invaded and disturbed. This unclassified 
 rule is limited to injuries caused to the land itself, and does not 
 afford relief for damages by the same means to artificial structures. 
 For an injury to a building which is calculated to deprive him of 
 his right to the soil on which it stands, caused by the excavation 
 of a pit on adjoining land, an action can only be maintained where 
 a want of due care or skill, or positive negligence, has contributed 
 to produce it ; and it was accordingly adjudged, if the defendant 
 in that case by carting away the earth on her own land caused 
 plaintiff's land to fall and sink into the pit which she had dug, she 
 was liable for the injury to the soil of the plaintiff ; but that, in 
 the absence of any proof of negligence in the execution of the 
 work, the jury could not take into consideration as an element of 
 damages, for which compensation could be recovered, the fact that
 
 198 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 the foiindation of plaintiff's house had been made to crack and 
 settle, although the weight of the house did not contribute to the 
 sliding or crumbling awaj'- of the soil. 
 
 As the cases of Brown v. Robins^ 4 Hurl. & N. 186 ; Hunt v. 
 Peake. Johns. Eng. Ch. 705, and Stroyhan v. Knowles, 6 Hurl. 
 & IST. 454, — in which it was held that in an action for causing the 
 soil to sink, which would have sunk if there had been no building 
 upon it, the damages recovered might include injury to the build- 
 ings also, — are directly opposed to ThurstonY. Hancock and Foley 
 V. Wyeth, the Supreme Court of Massachusetts, in Gilmore v. 
 Driseoll, 122 Mass. 199, refused to follow the English rulings. In 
 that case from the evidence the natural inference is that, by the 
 operation of natural and ordinary causes upon the land as it was 
 left by the excavations of defendant and which he took no pre- 
 cautions to guard against, part of the soil of plaintiff's land slid 
 and fell off, and for the injuries so caused to her soil it was held 
 an action might be maintained, but that she could not maintain an 
 action for injury to her fences and shrubbery, because her natural 
 right and her corresponding remedy were confined to the land 
 itself, and did not include buildings or other improvements thereon. 
 The amount of recovery was restricted to the loss and injury to 
 the soil alone, and she was not permitted to recover for the cost 
 of putting her land into and maintaining it in its former condi- 
 tion, because that was no test of the amount of damages, nor could 
 she recover the difference in market value, because it did not ap- 
 pear that that difference is wholly due to the injury to her natural 
 rifflit in the land, but it might depend upon the shape of the lot, 
 upon the improvements thereon or upon other artificial circum- 
 stances, which have nothing to do with the natural condition of 
 the soil. 
 
 If one, in the exercise of his right in the removal of his own 
 soil, cause injury to his neighbor through his negligence, which 
 consists in the want of ordinary care,' he will be liable." It is the 
 duty of one about to make an excavation upon his own property, 
 
 ^Moody V. McClelland, 39 Ala. 45; Charless v. Rankin, 22 Mo. 566. 
 ^Boothby V. Androscoggin & E. R. R. Co. 51 Me, 318; Dixon v. Wilkimon, 2 
 
 McArth. 425; Shafe7- v. Wilson, 4A Md. 268; Stevenson v. Wallace, 27 Gratt. 
 
 77; Austin v. Hudson River R. Co. 25 N. Y. 334; Shrieve v. Stokes, 8 B. 
 
 Mon. 453; Quincy v. Jones, 76 111. 231. See also ante, p. 38, note 1.
 
 •Chap. XL] KECIPROCAL EASEilENT OF LATERAL SUPPORT. 199 
 
 that may cause injury to adjoining property, to give seasonable 
 notice, in order that the owner of such property may protect 
 himself.* The owner of land, on making an excavation on his 
 own premises, which may endanger a building on his neighbor's 
 land, is bound to use reasonable care, and will be liable for injuries 
 to his neighbor's property resulting from his negligence;' but he is 
 under no obligation to shore up his neighbor's house, nor is there 
 any duty arising from contiguity merely that he should give his 
 neighbor notice of his intention to excavate on his own premises.' 
 The fact that an excavation is done by an independent contractor 
 for the owner will not excuse injury to an adjoining property where 
 the statutory requirement has been neglected.* 
 
 Where land has been sold by the owner for the express purpose 
 of being built upon, or where, under other circumstances, a grant 
 may reasonably be implied, every presumption should be made, 
 and every infei'ence should be drawn, in favor of such an easement, 
 short of presuming a grant when it is undoubted that none has 
 ever existed. The presumption of reciprocal easement of lateral 
 support may reasonably be inferred under any circumstances from 
 which, at the present time, a grant would properly be implied. 
 Eut in the absence of any such circumstances, it was ruled in 
 Dalton V. Angus, L. E.. 6 App. Cas. 740, that there is no form of 
 easement in which the doctrine of presumption should be more 
 sparingly ai^plied than the easement of lateral support. 
 
 This easement is obviously one of very anomalous character. 
 In every other form of easement the party whose right as owner 
 is prejudicially affected by the user has the means of resisting it, 
 if illegally exercised. In the case of so-called " affirmative ease- 
 ments " he can bring his action or oppose physical obstruction to 
 the exercise of the asserted right. Even in the case of another 
 negative easement, and which is said to approach more nearly to 
 
 ^Lasala v. Holbrook, 4 Paige, 169, 3 N. Y. Ch. L. ed. 890; Shrieve v. Stokes, 
 
 8 B. Mon. 453; Massey v. Goyner, 4 Car. & P. 161; Mnn v. Abelea, 35 
 
 Kan. 85. 
 ^Dodd V. Holme, 1 Ad. & El. 493; Walters v. Pfeil, Mood. &M. 362; Masseyv. 
 
 Ooyner, 4 Car. & P. 161; Charless v. Rankin, 22 Mo. 566; Humphries v. 
 
 Brogden, 12 Q. B. 739; Brown v. Windsor, 1 Cromp. & J. 20 ; (Jhadwick 
 
 V. Trower, 6 Bing. N. C. 1. 
 Worrity v. Ba^, 72 N. Y. 307; Trower v. Ghtidwick, 3 Bing. N. C. 334, 6 
 
 Bing. N. C. 1. 
 *Dorrily v. Bapp, 72 N. Y. 307.
 
 200 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 this — that of light — the analogy entirely fails, for, although na 
 action can be brought against the neighboring owner for opening 
 windows overlooking the land of another, there is still a remedy, 
 however rude, of physical obstruction by building opposite to 
 them ; but against the acquisition of an easement of lateral sup- 
 port, the adjoining owner has no remedy or means of resistance, 
 unless, indeed, he should excavate his own immediately adjoining 
 soil while the neighboring house is being built or before the ease- 
 ment has been fully acquired, for the purpose of causing the house 
 to fall. But it may happen that he may have built to the extrem- 
 ity' of his own land, as he lawfully might,' and may require 
 the support of the soil to uphold his own house. In the 
 mean time such adjacent owner may excavate his own land 
 for such purposes as he sees fit, provided he does not dig 
 carelessly or recklessly ; and if in so doing the adjacent earth 
 gives way, and the house falls by reason of the additional weight 
 thereby placed upon the natural soil, the owner of the house is 
 without remedy. This doctrine is fully supported by the author- 
 ities.'' For the right of lateral support to land does not extend to 
 buildings placed thereon ; and an adjacent proprietor is not liable 
 for the giving way of the earth on account of his excavations, if 
 he has exercised reasonable care, and the earth would not have 
 given away except for the added weight of the buildings.* 
 But the duty of care in doing the work in such a manner as not 
 needlessly to injure his neighbor's property is imposed upon the 
 one making the excavation." This duty imposed upon the 
 person excavating near a building, to exercise due care, will 
 under some circumstances include reasonable notice to the owner 
 of the building that he may protect his property." But the 
 one making the excavation is not required to shore up the build 
 
 ^Partridge v. Scott, 3 Mees. & AV. 220; Winn v. Aheles, 35 Kan. 85. 
 
 ^Moody V. McClelland, 39 Ala. 45; Beard v. Murphy, 37 Vt. 99 ; Charless 
 
 V. Rankin, 22 Mo. 566, 66 Am. Dec. 644, and note, 649 ; Lamia v. Hoi- 
 
 brook, 4 Paige, 169, 25 Am. Dec. 524. 
 ^Moellering v. Evans, 121 Ind. 195, 6 L. R. A. 449; McGuire v. Orant, 
 
 25 N. J. L. 356; 3 Sutherland, Dam. pp. 417, 418; 2 Washb. Real Prop. 
 
 380. 
 
 '^Baltimore & P. R. Co. v. Reaney, 42 Md. 117; Panton v. Holland, 17 
 Johns. 92; Quincy v. Jones, 76 111. 281; Charless v. Rankin, 22 Mo. 566. 
 
 ^Dorrity v. Rapp, 72 N. Y. 307; Dodd v. Holme, 1 Ad. & El. 493; Pari- 
 ton V. Holland, 17 Johns. 92; FoUy v. Wyeth, 2 Allen, 131.
 
 Chap. XT.] PARTY-WALL. EASEMENT OF SUPPORT. 201 
 
 ing, nor does any duty arise, from contiguity merely, that he 
 should give his neighbor notice of his intention to excavate on 
 his own premises.' 
 
 In Gilmore v. Driscoll^ 122 Mass. 199, the doctrine of prescrip- 
 tion in lateral support for buildings is criticised as having no 
 equitable foundation, no right being asserted that one can legally 
 meet and contest during the period of prescription,^ 
 
 Section X^.—Fourty -Wall.— Easement of Support. 
 
 The courts are reluctant to admit the creation by parol of an 
 easement in the land of another whicli amounts to an absolute 
 taking of the property itself. To avoid such a presumption own- 
 ers of property are not bound at their peril to prevent every ille- 
 gal encroachment on their estates, and a license or consent to one 
 to enter on another's property cannot be extended by inference to 
 justify the unlicensed entry of others. A license by one joint 
 owner of land to dig ore therein, only extends to his interest in 
 the common property, and will not justify an injury to the entire 
 property.* Even if, by reason of mistake on the j^art of the land 
 owner, buildings are erected on his premises by his consent, he 
 may be relieved from the incumbrances thus created where they 
 have not continued for twenty years.* A parol license to do any 
 act on the land of another does not trench upon the policy of the 
 law which requires that contracts respecting any title or interest in 
 real estate shall be by deed or in writing. It gives the licensee no 
 estate or interest in the land. It excuses acts done which would 
 be trespass, or otherwise unlawful. It is revocable at common law 
 not only at the will of the owner of the property on which it is to 
 be exercised, but by his death, by alienation or demise of the land 
 by him, and by whatever would deprive the original owner of the 
 
 ^Dorrity v. Rapp, 72 N. Y. 307, citing Washb. Easem. 444; Trower v 
 
 Chadwick, 3 Bing. N. C. 334, 6 Bing. N. C. 1. 
 ^See also Napier v. Balwinkle, 5 Rich. L. 311. 
 ^Omnha O. Smelt. & Refin. Co. v. Tabor, 13 Colo. 41, 5 L. R. A. 236. See 
 
 Dyer v. Sanford, 9 Met. 395; Murray v. Haverty, 70 111. 318; McLeUen v. 
 
 Jenness, 43 Vt. 183 ; Agnew v. Johmon, 17 Pa. 373 ; Lowe v. Miller, 3 
 
 Gratt. 205; Burbankv. Crooker, 7 Gray. 159; Wheeler v. Wlieeler, 33 Me. 
 
 347; Coursiii's Appeal. 79 Pa. 220; W7iite v. Osburn, 21 Wend. 72; Smyth. 
 
 V. Tankersley, 20 Ala. 212. 
 
 *Proctor V. Putnam Machine Co. 187 Mass. 159.
 
 202 IMPOSED DUTIES, PERSONAL. [Part 1. 
 
 right to do the acts in question, or give permission to others to do 
 them/ 
 
 The principle upon which it has been held that a party plain- 
 tiff, applying for equitable relief, will be refused when he has 
 unreasonably and without proper objection permitted another to 
 erect any structure on his own land in violation of some contract, 
 condition or agreement which the plaintiff is entitled to enforce, 
 has, under the ruling of some courts, no application where the 
 structure complained of is on plaintiff's own land, and where the 
 act of the defendant in erecting or maintaining it is an invasion of 
 the owner's rights therein." A house built upon the land of anoth- 
 er without permission and agreement becomes part of the realty ; 
 but where permission is first obtained and agreement had to that 
 effect, the building remains personalty.' That which a licensee 
 has already done does not become unlawful by the revocation of 
 the license, if it be an act done on the premises of the licensor, — 
 as, if he has erected a structure thereon ; but, as has been held in 
 some cases, he loses his right to continue to maintain it.* But 
 where, at the time of the revocation of a parol license, or of notice 
 to remove the wall of a building erected in pursuance thereof, half 
 of tlie old foundation wall has been entirely removed and the li- 
 censor's building is then supported by the needles inserted by the 
 licensee, and to remove them at the time would endanger the lives 
 of the workmen and allow the building to fall, the licensee has the 
 right, to the extent that the walls have been shored, to proceed 
 and build up the new wall, and for that purpose to enter upon so 
 much of the licensor's lands as is necessary.* Where defendants' 
 grantor, by oral agreement with plaintiffs' grantor, and by his per- 
 mission, built up a garden wall, which stood principally on the 
 lands of plaintiffs' grantor and a part of which was wholly on such 
 land, and extended his building by letting his timbers into the wall 
 as thus built up, the erection of the superstructure on the wall and 
 
 ^Cook V. Stearns, 11 Mass. 533; Stevens v. Stevens, 11 Met. 251; Clapp v. Bos- 
 ton, 133 Mass. 367. 
 
 ^Whitney v. Union R. Co. 11 Gray, 359. See ante, pp. 181, note 7, 187, 
 note 2. 
 
 ^Harmon v. Kline, 52 Ark. 251. 
 
 *Hodgkins v. Farrington, 150 Mass. 19, 5 L. R. A. 209. But see ante, pp. 
 182, notes 1, 2, 3, 6, 183, Twte 1. 
 
 ^Ketchum v. Newman, 116 N. Y. 422.
 
 Chap. XI.] PARTY-WALL. EASEMENT OF SUPPORT. 203 
 
 insertion of the timbers therein were not unlawful wlien con- 
 structed, but the defendants lose the right to continue them when 
 the plaintiffs' land becomes the property of another, who requests 
 their removal. Although defendants offer to pay plaintiffs their 
 damages, caused by the retention of the wall on its present site, 
 and request that the suit may be dismissed unless the plaintiffs 
 grant them an easement in the wall or the fee to one half the soil 
 upon which it stands, upon payment of compensation therefor, the 
 court has no right to refuse plaintiffs the relief to which they are 
 entitled if they decline to sell their land or to grant an easement 
 therein. In such case, if defendants do not remove such super- 
 structure and timbers from plaintiffs' land, the plaintiffs have the 
 right to do this or have it done, even if serious injury thereby re- 
 sults to the defendants. The fact that the plaintiffs will suffer no 
 substantial injury if the wall remains as it is, while the defendants 
 will suffer heavy loss if the wall is i-emoved and they are thus 
 compelled to take out their timbers and erect a new wall on their 
 own land to support their building, cannot give them a right to 
 the plaintiffs' property'- if they have no legal interest therein. 
 The plaintiffs in such a case are entitled to a decree authorizing 
 them to remove the wall so far as it stands upon their land and 
 also the timbers so far as they project over it, but at their own ex- 
 pense, as these structures have become unlawful only since the li- 
 cense under which they were erected has been countermanded, and 
 to an injunction forbidding the defendants from interfering with 
 them in so doing, unless, within a brief time to be named in the 
 decree, the defendants shall themselves remove the wall and tim- 
 bers. The plaintiffs are not bound by the acquiescence and laches 
 of their predecessors in title so that they cannot maintain such a 
 suit, unless such acquiescence and laches have continued for twenty 
 years.' 
 
 Easements by prescription in land are only to be acquired 
 by adverse user thereof for twenty years. But the reciprocal 
 right of lateral support is readily assumed in case of a wall between 
 the estates of adjoining owners, which is used for the common 
 benefit of both. Such a wall is presumed to be a party-wall until 
 
 ^Eodgkins v. Farrington, 150 Mass. 19, 5 L. R. A. 209, But see ante, p. 182, 
 and notes.
 
 204 IMPOSED DUTIES, PEESONAL. [Part I. 
 
 the contrary is sliown;' and, in the absence of evidence to the con- 
 trary, a party-wall, with its flues and appurtenances as originally 
 constructed, is presumed to have been so constructed by common 
 consent at the common expense and for the common benefit of tho 
 proprietors." The adjoining owners of land may, by mutual 
 agreement, regulate the use and enjoyment of their respective 
 properties, with a view to the permanent benefit and advancement 
 of the value of each.^ A covenant between adjoining owners ta 
 build a party-wall creates an easement.* It is a covenant which 
 runs with the estate.^ By a party-wall we must understand a wall 
 between the estates of adjoining owners, which is used for the 
 common benefit of both, chiefly in suj^porting the timbers used in 
 the construction of contiguous houses on such estates.' A party- 
 wall is a structure for the common benefit and convenience of both 
 the tenements which it separates, and either party may use it.'' 
 Party structure is a structure separating buildmgs, stores or rooms- 
 which belong to different owners, or which are approached by dis- 
 tinct staircases or separate entrances from without ; whether the 
 same be a partition, arch, floor or other structure.* A partj^-wall 
 usually stands half on the land of each, but the land underneath, 
 as well as the wall, may be owned in common, or by one of the- 
 parties.* The title to such walls, and the rights and liabilities of 
 the co-owners, are subject to several peculiar rules, which differ, 
 however, somewhat in different jurisdictions. An agreement made 
 between adjoining owners in relation to a party -wall erected on the 
 division line of their lots is binding upon the parties and creates an 
 
 ' Weyman v. Ringold, 1 Bradf. 61; Matts v. Hawkins, 5 Taunt. 20; Campbell v. 
 
 Mesier, 4 Johns. Ch. 334, 1 N. Y. Ch. L. ed. 858. See Wolfe v. Frost, 4 
 
 Sandf. Ch. 73, 7iote. 
 ^ Weill V.Baker, 39 La. Ann. 1102. 
 ^Columbia College v. Lynch, 10 N. Y. 440; Columbia College v. ThacJier, 10 
 
 Abb. N. C. 235. 
 *Gibson v. Holden, 115 111. 199, 1 West. Rep. 677; Eeteltas v. PenfoU, 4 E. 
 
 D. Smith, 123. 
 ^Savage v. Mason, 3 Cush. 504; Maine v. Cumston, 98 Mass. 317; Standish v. 
 
 Lawrence, 111 Mass. Ill; Dorsey v. St. Louis, A. & T. H. R. Co. 58 111. 
 
 68; Sterling Hydraulic Co. v. Williams, 66 111. 397; Miiidger v. Baker, 5T 
 
 N. Y. 209. 
 62 Washb. Real Prop. 5th ed. 385. 
 ''Field V. Leiter, 118 111. 17, 6 West. Rep. 54. 
 8Stat. 18 and 19 Vict. chap. 123, § 3. 
 ^Fettretch v. Leamy, 9 Bosw. 525.
 
 ■Chap. XI.] PAllTV WALL. EASEMENT OF SUITORT. 205 
 
 •equitable cliarge, easement and serv^itucle upon the lots huiltupon.' 
 It is decided that if a party-wall may be called an incumbrance at 
 all, it is an incumbrance when apparent — as stone steps encroach- 
 ing on another's sidewalk — in the same sense as a public road, of 
 which, as it affects the physical condition of the property, the pur- 
 chaser must take notice; such an incumbrance would not be within 
 the meaning of the ordinary covenant of title or of quiet enjoy- 
 ment.' 
 
 But it is held an agreement between adjoining owners for tlie 
 •erection of a party-wall, who made it a covenant running with 
 the land, is a breach of a subsequent conveyance if one of the 
 owners covenants against the incumbrance ; and the measure of 
 damages is the depreciation in the value of the land, considering 
 that the agreement created actual easements or servitudes.* And 
 so an agreement compensating the owner of land for damages for 
 the encroachment thereon by a party-wall built by the adjoining 
 owner legalizes the encroachment, and the owner having subse- 
 quently deeded the land with covenant against incumlirances and 
 special warranty to one ignorant of the encroachment, such an 
 encroachment was a breach of the covenant, and the grantee could 
 recover of the grantor damages therefor.* Where the adjoining 
 owner acquiesces in the construction of a party-wall, such acquies- 
 cence estops him and those claiming under him from afterwards 
 objecting to the method or materials whereby and wlierewith such 
 wall was constructed ; and acquiescence in the change of materials 
 used in the foundation would have the effect to alter the agree- 
 ment and render it as thus changed binding on one receiving a 
 conveyance of the lot without consideration paid to the person 
 who is estopped by his acquiescence.* But where a common wall 
 is erected by tenants for years, although it may be a party-wall, as 
 between themselves, it creates no easement binding on the owner 
 
 ^Keating v. Korfhage, 88 Mo. 524, 4 West. Rep. 569; Gibson v. Uolden, 115 
 
 111. 199. 1 West. Rei). 677; Ruling v. Chester, 19 Mo. App. 607, 2 West. 
 
 Rep. 175. 
 ^Memmeri v. McKeen, 113 Pa. 315, 3 Cent. Rep. 383; Lampman v. Milks, 21 
 
 N. Y. 507; Curtiss v. Ayrault, 47 N. Y. 79; Rogers v. i-imheimer, 50 N. 
 
 Y. 646. 
 ^Mackey v. Harmon, 34 Minn. 168. 
 ^Edmunds' App. (Pa. Jan. 17, 1887) 6 Cent. Rep. 423. 
 ^Keating v. Korffiage, 88 Mo. 524, 4 West. Rep. 569.
 
 206 IMPOSED DUTIES, PERSONAL. [Part I, 
 
 of a reversionary fee that can prevent such owner, when the term 
 expires, from dealing with his property as if no such wall had been 
 erected. The legal rights of a grantee of the reversioner are ex- 
 actly the same.' That a flue is constructed in the lower stories of 
 a party-wall in that half of it which is on the side of one property 
 does not establish exclusive ownei'ship in the flue or destroy the- 
 presumption that it was intended for the common use and benefit 
 of the parties.^ 
 
 In most of the States the rights of adjoining owners in a party- 
 wall are regulated by statute. Generally, under such statutes, when 
 one of two adjoining owners builds a party-wall, he retains the 
 ownership of what he has placed upon another person's land till 
 he shall have been paid for it. Upon such payment the other 
 owner acquires property in that portion of the wall with the right 
 to use and treat it as a party-wall and to have the support of the 
 other half of the wall. The same property rights are acquired on 
 the same terms (that is to say, a payment) by the purchaser of one 
 of two adjoining lots from the owner of both. In both cases the 
 nature and extent of the property and rights of the two owners 
 are governed by the Building Laws; that is to say, they own it as 
 a party -wall.* Although under the statutes in the various States a 
 party-wall built on another's land is not therefore incorporated in 
 such land but still remains as separate property belonging to 
 the builder till payment, yet when the builder owns both adjoining 
 lots, — in other words both the wall and the land on which it 
 stands, — the effect of the relation of these two subjects of property 
 thus brought together by himself is that his deed conveying the 
 lands must be considered as conveying usque ad coelutn, and there- 
 fore as conveying the superstructure, just as in any other deed 
 made between two owners, both the land and what is built on it 
 is construed, unless he makes an express reservation of the latter. 
 When he uses a common-law conveyance he must be understood 
 to use it in its ordinary sense and with its ordinary effect. Part 
 of a wall within the described boundaries of a lot is just as capable 
 of passing by mere description of the land as the entire house 
 
 1 Webster v. Stevens, 5 Dner, 553. 
 
 ^ Weill V. Baker, 39 La. Ann. 1103. 
 
 ^GoMschmid v. Starring, 5 Mackey, 582, 8 Cent. Rep. 716.
 
 Chap. XI.] PARTY-WALL. — EASEMENT OF SUPTOKT. 2<>T 
 
 would be. Indeed, for the purpose of making legal title to one 
 half the wall and the rights connected with it under tlie Building 
 Laws, a description of the land on which it stands is a perfectly 
 proper method. The consideration paid for the land must be taken 
 to be the consideration for everything wliich was conveyed by the 
 deed, including the half of the party-wall.* The law relating to 
 party-walls is no invasion of the right of ])roperty. It prescribes 
 simply a rule for the convenient, economical and safe enjoyment 
 of property by the owner.' Strictly speaking a party-wall is one 
 built or supposed to have been built at the joint expense of con- 
 tiguous proprietors, an equal portion of the wall usually resting 
 upon the property of each proprietor, the whole wall belonging 
 originally to the neighboring proprietors, independently of the di- 
 viding line between the lots.' Such party-wall, however, is some- 
 times erected upon property owned in common, or it may be 
 erected entirely upon the ground of one of the contiguous propri- 
 etors, under special contract to that effect. Where the owners of 
 adjoining lots construct, by mutual consent, a wall partly on the 
 lot of each for the common support of buildings erected by them 
 on their respective lots, a id the same is used as a wall for a com- 
 mon support for twenty years, such wall is strictly a party-wall, 
 within the meaning of that term, and the owner of each house has 
 an easement in the portion of the wall standing on his neighbor's 
 land for its support." The only easement attached to a party- 
 wall is that of support.* The owners of the lots, having by com- 
 mon consent, at the time of the erection of the wall, and by its 
 subsequent uses, appropriated the same as a party-wall, have thus 
 estopped themselves as against each other and consequently as 
 against the grantees of either from denying the easement.' So, 
 also, where the ow^ner of two lots erects a building on each with a 
 common wall for the support of the two standing partly on each 
 lot, a conveyance of either lot by the original lines of the lot con- 
 
 ^Goldschmidv. Starring, 5 Mackey, 582, 8 Cent. Rep. 716. 
 
 ^Barns v. Wilson, 116 Pa. 303, 8 Cent. Kep. 456; Emns v. Japne, 23 Pa. 34. 
 
 3 Weill V. Baker, 39 La. Ann. 1102. 
 
 * Webster v. Stevens, 5 Duer, 553. See McLaugMin v. Cecconi, 141 Jlass. 
 
 252, 1 New Eng. Rep. 766. 
 ^Ingals v. Plamondon, 75 III. 118. 
 
 * Webster v. Stevens, 5 Duer, 553.
 
 208 IMPOSED DUTIES, PERSONAL. [Part 1. 
 
 veys with the building itself an easement for its support on the 
 portion of the wall standing on the other lot; and it is equally true 
 that when such easement of support exists neither owner nor occu- 
 pant of one freehold can interfere with the walls to the detriment 
 of the other without his assent.' Where a party has built two 
 houses having a party-wall, on certain premises, and afterwards 
 sells one house and lot, describing it as "22 feet front," without 
 mentioning any starting point, it is proj)erly measured from the 
 middle of the division wall.* A common owner of both lots, 
 having expressly appropriated the wall as a party-wall, is estopped 
 as against his own grantee of one lot, unless, indeed, by the terms 
 of his grant, the covenant is expressly or impliedly taken away.* 
 
 a. Title in Farty -Wall and Right to Strengthen 
 and Elevate.— Contribution for Repair. 
 
 Where the owner of two adjoining city lots built a house upon 
 each lot, separated from each other by a brick wall, one half of 
 which was on each lot, and conveyed the lots on which the build- 
 ings were erected to different persons, the wall must be taken to 
 have been built as a single structure and granted by the owner of 
 two estates to constitute the wall of the house upon each estate. 
 It was not the dividing line between the two houses, because it 
 was a part of each house, and each owner had an equal right in 
 the whole wall with the other owner. The estate which the own- 
 ers have in it is an estate in a party- wall, and the rights of the 
 owners in it are found in their presumed intention in the mutual 
 grant of a party-wall rather than by classifying it with other estates 
 and deducing its qualities from the name given to it. And al- 
 thouo-h a fee will not be implied from user, where an easement 
 would secure the privilege enjoyed,* yet there is an implied 
 grant of a party-wall in houses on adjoining lots conveyed by a 
 common grantor, when the boundary line is described by courses 
 and distances so as to run through the middle of the wall of both 
 
 ^Eiio V. DelVeccMo, 4 Duer, 53; Hieatt v. Morris, 10 Ohio St, 523; In^als v. 
 
 Plamondon, 75 111. 118. 
 « Warfel v. Knott, 128 Pa. 528. 
 ^Webster v, Stevens, 5 Duer, 553. 
 *G<mverneur v. National Ice Co. 57 Hun, 474.
 
 Chap. XI.] TITLE IN PARTY-WALL. 209 
 
 houses. It is immaterial whether the buildings are conveyed un- 
 der the description of the lots or by designation as buildings.' 
 
 The English courts, when looking at the common interest and 
 right of the parties, — they sometimes call it a tenancy in com- 
 mon,'' Sometimes used to signify a wall divided longitudinally into 
 two strips, one belonging to each of the neighboring owners,' each 
 moiety being subject to an easement in favor of the owner of the 
 other moiety,* — do not mean that either party can have partition ; 
 and the courts of New York, when considering the rights of one 
 owner in the part of the wall on the land of the other owner, — 
 they say that each owns one half in severalty with an easement in 
 the other half,* — are not prevented from deciding in the same 
 case that each can take down and rebuild the half of the other,* 
 nor from deciding that the easement is not an incumbrance upon 
 either estate, but a benefit to each/ There is not now under con- 
 sideration the freqaent cases where the rights of the parties are 
 defined by special terms or agreements, but the simple grant, ex- 
 press or implied, of a party-wall ; and this is a grant by the owner 
 of both estates or the mutual grant of the separate owners, of rights 
 in a wall situated on both estates. What these rights are depends 
 upon the presumed intention of the parties. The rights of the 
 parties are such as the law implies to have been the intention of 
 the parties from the grant, expressed or implied from user of the 
 wall as a party-wall, and it is immaterial whether the grant is by 
 the single owner of both estates or is the mutual grant of several 
 owners,* 
 
 The purpose of each of the adjoining owners in providing 
 for a party-wall is the same. It is intended to form part of a 
 
 ^Carlton v. Blahe (Mass. Sept. 4, 1890) 25 N. E. Rep. 83. 
 
 * Wiltshire v. Sidford, 1 Man. & Ry. 404; Cubitt v. Porter, 8 Barn. «& C. 257. 
 
 ^Matts V. Hawkins, 5 Taunt. 20. 
 
 *Waison V. Gray, L. R. 14 Ch. Div. 192, 194. 
 
 ^Matts V. Hawkins, 5 Taunt. 20; Cubitt v. Porter, 8 Barn. & C. 257; Block v. 
 
 Isliam, 28 Ind. 37; IngaU v. Plamondon, 75 111. 123; Hendricks v. Stark, 37 
 
 N. Y. 108; Eno v. Del Vecchio, 4 Duer, 61; Sherredv. Ui«co, 4 Sandf. 480; 
 
 Thompson v. Sumerville, 16 Barb. 473; Partridge v. Gilbert, 15 N. Y. 014; 
 
 Brooks V. Curtis, 50 N. Y. 639; Joy v. Boston Penny Sav. Bank, 115 Mass. 
 
 60; Goodrich v. Lincoln, 93 111. 359. 
 ^Partridge v. Gilbert, 15 N. Y. 601. 
 ''Hendricks v. Stark, 37 N. Y. 106. See ITaUe v, Paggi (Tex. June 19, 1888) 
 
 1 L. R. A. 1 ; Bertram v. Curtis, 31 Iowa, 46. 
 *8ee Webster v. Stevens, 5 Duer, 553; Richards v. Rose, 9 Exch. 218. 
 14
 
 210 IMPOSED DUTIES, PERSONAL. [Part I, 
 
 building on his land. A party-wall is as beneficial to him as a 
 several wall, and it is no detriment to him, for the use which one 
 owner makes of it as a wall of his building cannot impair the use 
 of the other. In effect, each owner acquires the right to build one 
 half of his wall upon his neighbor's land, and each, contributing 
 his portion of the expense, has a right to an equal benefit in a wall 
 so built,' The wall is a substitute to each for a separate wall, and 
 there can be no implied limitation in his right to use it as he would 
 use his several wall, except that he shall not impair its value to his 
 neighbor. But he may not enlarge the wall to change his private 
 residence into a hotel,^ nor remove it because it proves to be on 
 his own land f nor, if he build the wall higher, may he extend 
 his material over the whole width of the wall.* "With this limi- 
 tation, it will be presumed that each intended it for all uses and 
 purposes to which the wall of his building would ordinarily and 
 properly be put. That presumption is for the advantage of both 
 and to the detriment of neither. 
 
 The case of Weston v. Arnold, L. E. 8 Ch. App. 1090, seems 
 to support the view that a wall may be a party-wall to such height 
 as it belongs in common to two adjoining buildings, and cease by 
 implication to be such for the rest of its height ; but this decision 
 is opposed to the weight of authority. If the party-wall cannot 
 be built up, neither house can be raised without building a new 
 wall, for if one owner could lawfully build a several wall upon the 
 part of the wall over his own land, it would not be a right of prac- 
 tical value. He could not build on it a sufiicient wall. It is not 
 reasonable to suppose that each party intended that he should never 
 use the wall for a building higher than the one that should be first 
 erected, and a provision to that effect detrimental to both parties 
 and beneficial to neither cannot be presumed. If it is said that 
 one owner may not wish to use the wall as built up, and may pre- 
 fer not to have the adjoining building higher than his own, the 
 answer is that that is a particular and exceptional circumstance, 
 
 ^Nalle V. Paggi{Tex. June 19, 1888) 1 L. R. A. 1; Field v. Leiter, 118 111. 
 
 17, 6 West. Rep. 54. 
 ^Musgrave v. Sherwood, 60 How. Pr. 339. 
 ^ Henry v. Kf>ch, 80 Ky. 391 ; Miller v. Brown, 38 Ohio St. 547; Schile v. Brok- 
 
 hahus, 80. K Y. 614. 
 *BlochY. Isham, 28 Ind. 37; Stedman v. Smith, 8 El. & Bl. 1; Watson v. 
 
 Gray, L. R. 14 Ch. Div. 192.
 
 Cliap. XI.] TITLE IN PARTY-WALL. 211 
 
 which cannot be presumed. It is presumed to be a detriment to 
 the owner of a building to deprive him of the power to make ad- 
 ditions to it, and grants and contracts will be construed on that 
 presumption unless it is controlled by their terms. JS^ot only 
 would a provision, implied in a grant of a party-wall, that it should 
 not be carried higher than as originally 'constructed, be contrary 
 to the interests and the apparent intention of the parties, but it 
 would not be in accordance with public policy. The public inter- 
 est is not promoted by putting impediments in the way of erecting 
 buildings, and the law will not be swift to construe the acts of 
 parties so as to produce that effect. But a party -wall, under build- 
 ing regulations which allow its construction by one party without 
 the consent of the other, cannot be constructed, against his will, 
 with windows or openings which overlook the servient tenement.* 
 The owner of land subject to the servitude of a party-wall may 
 compel windows and openings improperly left in such wall to be 
 closed in such a manner as shall render the filled-up places suitable 
 for support and for all the purposes contemplated by the right of 
 joint use ; and brick work used in closing them should not be a 
 mere patch, but should connect with the joint wall in the usual 
 manner of building a wall.* The question of the right of one 
 owner of a party-wall to build it up seems to have been very sel- 
 dom raised. 
 
 In Rindge v. Baker, 57 N. Y. 209, where parties had agreed 
 upon the building of a party-wall, and one had purchased materials 
 and prepared to build, the other party was held estopped to deny 
 the easement, and was required to contribute to the expense where 
 the other proceeded to complete the wall." 
 
 Phillips V. Bordman, 4 Allen, 147, discusses the right in a 
 party-wall as an easement, and there is certainly nothing in the 
 case unfavorable to the right to build upon the wall. 
 
 Sanborn v. Bice, 129 Mass, 387, was tort for breaking and en- 
 tering the plaintiff's close by building up the partition wall be- 
 tween the houses of the plaintiff and defendant, and the action 
 was sustained, but the only question considered in the opinion was 
 
 ^Corcoran v. NaUor, 6 Mackey, 580. 
 
 ^Graves v. Smith, 87 Ala. 450, 5 L. R. A. 298; Dauenehauer v. Da-ine, 51 
 Tex. 480.
 
 212 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 whether there was any evidence that the plaintiff owned to the 
 middle of the wall. 
 
 It is said of that case in Quinn v. Morse, 130 Mass. 317, 322, 
 that " so much of the wall as was carried up by the defendant on 
 the plaintiff's land was not as wide as the original wall, nor was 
 its face towards the plaintiff's land parallel with the centre line of 
 that wall, and the defendant did not rely on any right to carry up 
 a party-wall upon the plaintiff's land, but on the plaintiff's want 
 of title in the land itself." Quinn v. Morse, supra, was a bill in 
 equity to restrain the defendant from building up a partition wall 
 between him and the plaintiff. The plaintiff had conveyed the 
 estate to defendant's boundary on the middle of the partition wall. 
 This sale was in pursuance of an agreement by which the defend- 
 ant agreed to pay to the plaintiff for half of the wall what it was 
 worth to the defendant for building a store on the land. The 
 court says that the intention of the plaintiff that the wall should 
 be a party-wall, which the defendant would have a right to carry 
 up in building his store, was manifested by the agreement. The 
 agreement was only to sell one half of the wall for what it should 
 be worth in building a store. The right to carry up the wall seems 
 to have been inferred from the intention in the agreement that it 
 should be a party-wall. 
 
 In McLaughlin v. Cecconi, 141 Mass. 252, 1 New Eng. Rep. 
 ^QQ, the whole wall was on the plaintiff's land and belonged to 
 bim, and no question in regard to party- walls arose. 
 
 Brooks V. Curtis, 50 N. Y. 639, decides that one owner of a 
 party-wall has a right to build it up. So either owner of a party- 
 wall may increase the thickness, length or height of his own part 
 of it, if he can do so without injury to the other part.' Either 
 party may raise it, where there was no agreement regulating its 
 heip-ht, if it can be raised without interference with or injury to 
 the rights of the other party ; but if the original agreement was 
 for a dead wall, there can be no windows or openings in the part 
 raised.* 
 
 In Partridge v. Gilbert, 15 N. Y. 601, in which it was decided 
 that one owner had a right to take down and rebuild a ruinous 
 
 ^Andr(B v. Hazeltine, 58 Wis. 395. 
 ^Dauenehauer v. Devine, 51 Tex. 480.
 
 Chap. XL] TITLE IN PARTY-WALL. 213 
 
 partj-wal], the wall was rebuilt higher than before, and the party 
 rebuilding was held not liable. It seems well settled that one owner 
 of a party-wall has a right to take down and rebuild it when 
 ruinous.' 
 
 In Campbell v. Mesier, 4 Johns. Ch. 334, Chancellor Kent de- 
 cided that one owner of a party-wall who had rebuilt it could re- 
 cover contribution from the other owner. But where the wall was 
 destroyed by the elements, neither was obliged to rebuild, or to 
 contribute thereto, even if he used the new wall partly erected 
 upon his land." 
 
 In Standard Bank v. Stokes, L. E. 9 Ch. Div. 68, it was said 
 that one owner of a party- wall, where the Metropolitan Building 
 Act did not apply, had a right to lower the foundation so as to 
 give him a sub-basement. 
 
 In Field v. Leiter, 118 111. 17, 6 West. Eep. 54, the wall was 
 built by the plaintiff, one half on adjoining land. Defendant 
 bought the adjoining land and an agreement was made between 
 the parties, by which the defendant might use the wall as a party- 
 wall for his store, ten stories high, with the right to add to the 
 height of it, the defendant agreeing to straighten the wall and 
 foundations by necessary additions thereto on his own side. It 
 was held that defendant had a right to make necessary additions 
 to the foundation on the plaintiff's side. 
 
 Eno V. Del Veochio, 4 Duer, 53, decided that one owner might 
 underpin and deepen the foundation, and raise the wall higher on 
 his own land. 
 
 Matts V. Hawkins, 5 Taunt. 20, has been cited as deciding that 
 one owner of a party-wall can lawfully take down an addition built 
 upon it by the other owner. But this is expressly decided under 
 the Building Act, 14 Geo. III., chap. 78, which regulated the 
 rights of owners. 
 
 There is nothing in the English cases, such as Cuhitt v. Porter, 
 8 Barn. & C. 257 ; Wiltshire v. Sidford, 1 Man. & Ry. 404; Sted- 
 mam, v. Smith, 8 El. & Bl. 1, and Watson v. Gray, L. R. 14 Ch. 
 Div. 192, in which owners of a party-wall are called tenants in 
 
 ^Hieatt v. Morris, 10 Ohio St. 523. But see Potter v. White, 6 Bosw. 647; 
 Eno V, DeL Vecchio, 4 Duer, 53, 6 Duer, 17. 
 
 ^Slierred v. Cisco, 4 Sandf. 480; Orman v. Day, 5 Fla. 385, 392. See Par- 
 tridge V. QiJhert, 15 N. Y. 601.
 
 214 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 common, and wliicli decide that tenancy in a party-wall has some 
 of the qualities of tenancy in common, which suggests that one 
 owner of a party-wall for the lateral support of buildings can have 
 partition of the wall, or cannot carry it up higher than it may 
 orio-inally be built, for the purpose of using it as the wall of his 
 building. 
 
 The limitation upon the right of each owner to use the wall 
 as the lateral wall of such house as he may desire to erect is that 
 he shall not impair the value of the wall to the other owner. If 
 one owner carries up the wall, the addition becomes part of the 
 party-wall and the owners have equal rights in it, and the value of 
 the wall to either owner cannot be thereby impaired, but neither 
 owner has a right to so use the wall as to M^eaken or injure it.' 
 It is commonly held that each part owner may certainly increase 
 the height of his half of the wall, or so much as stands on his own 
 land, if he does not thereby endanger or injure the wall, he being 
 responsible for any resulting damage occasioned by any change in 
 the structure not required for repairs.' And, according to the 
 better view, as supported by the weight of authority, each pro- 
 prietor has the lawful right to increase the height of the entire 
 party-wall, when it can be done without injury to the adjoining 
 building, and without impairing the value of the cross-easement 
 to which the neighboring proprietor is entitled.' A clause in an 
 agreement obligating the defendant to strengthen the existing 
 foundations of a party-wall separating his land from that of the 
 complainant, so as to prevent any injury or damage to plaintiffs 
 building by reason of defendant's use of said wall, intends that it 
 is to be strengthened in the ordinary and usual mode of construct- 
 ing party-wall foundations in the vicinage.* In an action for dam- 
 ages on a bond in proceedings to restrain the tearing down of an 
 alleged party-wall, by a proprietor building the new building, evi- 
 dence is admissible to disprove damages, that the new building 
 erected beside the old wall could have been erected without any 
 detention, although the old wall was still standing.* 
 
 ^Phillips V. Bordman, 4 Allen, 147. 
 
 ^Andm v. Hazeltine, 58 Wis. 395. 
 
 ^Everett v Edwards, 149 Mass. 588, 5 L. R. A. 110; Brooks v. Curtis, 50 N. 
 
 Y. 639; Block v. Isliam, 28 Ind. 37, 92 Am. Dec. 295, note. 
 *Field V. Letter, 118 111. 17, 6 West. Rep. 54. 
 ^Sensenig v. Parry, 113 Pa. 115, 4 Cent. Rep. 48.
 
 Chap. XL] TITLE IN PARTY-WALL. 215 
 
 Where the wife of the owner liad a separate estate in a lot, and 
 the evidence showed that her husI)aTid acted as her agent in mak- 
 ing an agreement to arbitrate as to the cost of a party-wall, she 
 must be regarded as a feme sole and his acts as her acts. The 
 agreement and the completion of the wall being the principal 
 thing, it is competent for a court of equity by any proper proceed- 
 ing to ascertain its cost and adjust the equities in the case. Judg- 
 ment in such case establishes no personal lialjility against the wife 
 but is special and against the property which is burdened with the 
 equitable charge and for the enforcement thereof.' An equity 
 court may enforce contribution or a person may be restrained in 
 ■equity from interfering with or using the wall of another's house, 
 or a wall which has been maintained by him for thirty years." 
 
 Where a deed recites the right of a grantee to erect and maintain 
 a wall on an adjoining lot, such recitals cannot affect rights in a 
 wall constructed under circumstances different from those therein 
 provided for.^ Whether a receiver appointed in a mortgage fore- 
 <3losure suit, to receive the rents of the mortgaged premises, should 
 be required by the court to pay the expense incurred by an ad- 
 joining owner in securing an unsafe wall on the mortgaged prem- 
 ises on failure of the owner and receiver so to do, is discretionary 
 with the court appointing the receiver.* Under a statute author- 
 izing it, tlie right to build a new and thicker party- wall involves 
 and includes the rights to demolish the old wall, to establish a suf- 
 ficient foundation for the new one, to disturb the neighbor's en- 
 joyment and to enter upon his property to the extent necessary 
 for the exercise of the principal right. The proprietor who exer- 
 cises such right is bound for every exaggeration of the necessary 
 damages which he could by diligence have averted. He is bound 
 to reduce to a minimum the injury and inconvenience occasioned 
 to his neighbor, to occupy his property to the least extent and for 
 the shortest time consistent with the exercise of his right, and to 
 hasten by all practicable means the completion of the work and 
 the restoration of his neighbor to the full enjoyment of his own. 
 He is, moreover, bound, at his peril, to replace the neighbor, at 
 the end of the work, in a position every way equal to that which 
 
 ^Keating v. Korfhage, 88 Mo. 524, 4 "West. Rep. 569. 
 
 * ^McLaughlin v. Cecconi, 141 Mass. 252, 1 New Eng. Rep. 766. 
 
 *Iie Maddock, 103 N. Y. 630, 5 Cent. Rep. 791.
 
 216 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 lie occupied at its beginning, and to furnish liim a new wall fit 
 and adequate to support his building. ISTo law forbids an owner 
 from erecting one building on two lots; and, although his old 
 building rested only on one lot, yet, if he proposes to erect a new 
 one on two lots, he may do so, and may rest it on an old party- 
 wall, if sufficient, or may demolish it, and build a thicker one. 
 The right to build a thicker wall includes the right to rest it on 
 the centre of a sufficient foundation ; and, although the additional 
 thickness of the wall itself must be taken from his own soil, the 
 foundation must necessarily extend equally on each side from the 
 centre of the wall. When one proprietor exercises the right as to 
 a party -wall granted by statute, his neighbor is bound to bear, 
 without indemnity, the inconvenience and injury consequent there- 
 on, so far as they are inseparable from the exercise of the right.' 
 Provisions in statutes regarding party-walls requiring the consent 
 of the co-proprietor or a decision of judicial experts, in certain 
 cases, do not apply to the raising or reconstruction of a party- wall. 
 Provisions restricting the right of one co-proprietor to rest a wall in 
 common more than nine inches on the land of his neighbor, apply 
 to the wall itself, and not to its foundation, which, in many locali- 
 ties, must necessarily be wider than the wall. So the requirement 
 that the wall in common should be built in stone or brick, applies 
 only to the wall and its foundation proper, and does not forbid 
 the use of heavy timbers to make a firm and smooth basis on which 
 to build the brick foundation, any more than it would apj^ly to 
 wooden piles driven for the same purpose.* 
 
 b. Destruction of Party - Wall. 
 
 Where the easement in a party- wall is created by express grant, 
 the destruction of the wall will not of course end the easement.* 
 But when the easement was apparent, and the purchaser was held 
 chargeable with the existing conditions, and therefore estopped 
 from changing them, he will be released from the easement when 
 the condition is changed without his act.* 
 
 1 "^Heine v. Merrick, 41 La. Ana. 194. 
 
 ^Pope V. O'Hara, 48 N. Y. 446. See Stevenson v. Wallace, 27 Gratt. 77. 
 
 ^Partridge v. Oilbert, 15 N. Y. 601; Orman v. Day, 5 Fla. 385; Campbell v. 
 
 Mesier, 4 Johns. Ch. 334; Sherred v. Cisco, 4 Sandf. 480; Hoffman v. Kuhn^ 
 
 57 Miss. 746.
 
 Chap. XL] DESTRUCTION OF PAKTY-WALL. 217 
 
 In Brondage v. Warner^ 2 Hill, 145, the defendant's right to 
 use and occupy the wall in question lay in grant. The deed un- 
 der which the defendant in ejectment claimed the right to continue 
 to use the wall granted the right to build upon and occupy it- 
 That had been done. The fire which had destroyed the plaintiff's 
 store left the wall standing, which was occupied by the defendant. 
 It still answered the purpose for which its use had been deeded, 
 and therefore the court held that the right to continue to use it 
 had not been affected. But where the title to two lots is severed 
 by their conveyance to separate persons, the purchaser of each lot 
 is presumed to have contracted in reference to the condition of 
 the property at the time ; and the openly existing arrangement of 
 a party-wall cannot be changed so long as it stands and answers its 
 purpose. It was made a party-wall upon the severance of the title, 
 by the apparent easement and the description of the boundary line, 
 but the whole extent of the qualification, which resulted as to each 
 lot owner's title, was the easement which the other acquired in the 
 wall dividing and supporting their respective buildings. Each was 
 bound to preserve the existing order of things in that respect, and 
 neither had any right to change the relative condition of his build- 
 ing to the injury of the adjoining one. The party-wall of the two 
 buildings was an open and visible condition of the ownership of 
 the property ; and, in legal contemplation, its use as such, while 
 the building stood, was an element which entered into the contract 
 of the purchaser, and which charged the land with a servitude. 
 This principle of obligation is asserted in several cases.' But 
 upon the destruction of the buildings the tenements reverted to 
 their original or primary conditions of ownership. Their tenure 
 was no longer qualified by the relative rights and obligations 
 which previously existed. 
 
 In the early case of Shewed v. Cisco, 4 Sandf. 485, adjoining 
 buildings were destroyed by fire, and nothing was left of a party- 
 wall but the stone foundation. The plaintiff" rebuilt on his lot ; 
 and, when the defendant also rebuilt, he made use of the wall for 
 his buildings, which plaintiff had erected on the old foundation. 
 Thereupon, plaintiff sued to recover of defendant his cout)-ibution 
 
 ^Heartt v. Kruger (N. Y. June 3, 1890) 9 L. R. A. 135; Lampman v, Milka, 
 21 N. Y. 507; Curtiss v. Ayrault, 47 N. Y. 79; Rogers v. Sinsheimer, 50 
 N. Y. 646.
 
 218 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 towards the expense of the erection, and failed in his suit. In his 
 opinion. Judge Sandford held that the agreement under which 
 the party-wall had been built related to that wall only ; and he said 
 " that, when two owners of adjoining city lots unite in building 
 two stores with a party-wall, we have no right to infer from that 
 act an agreement binding upon them, and their heirs and assignees, 
 to the end of time, to erect another like party-wall at their mutual 
 expense when that one is casually destroyed, and so on, as often as 
 the new one shares the same fate." The implied agreement that 
 the party- wall existing at the time of the conveyance of the two 
 lots by their common owner should continue in its use and occu- 
 pation as such cannot be extended so as to relate to a changed con- 
 dition of things, caused by the casual destruction of the wall and 
 buildings. 
 
 In Partridge v. Gilhert, 15 K. Y. 601, Judge Denio, in his 
 opinion upon the case, approves of Judge Sandford's opinion in the 
 case cited. He holds that, upon the occurrence of a state of affairs 
 rendering the party-wall useless in its then condition, "the mutual 
 easements have become inapplicable, and that each proprietor may 
 build as he pleases upon his own land, without any obligation to 
 accommodate the other." The facts of that case related to the 
 right of the tenant of a building to recover damages for injuries 
 to goods, etc., occasioned during the rebuilding by the defendant 
 of a division-wall. The case turned upon the necessity for the re- 
 moval of the old, and the rebuilding of a new, wall. But the 
 opinions are instructive upon this subject, however unnecessary, 
 in that respect, to the decision of that particular case. Yery ap- 
 propriately to this case. Judge Denio remarked, also, in his opin- 
 ion, that " in the changing condition of our cities and villages, it 
 must often happen, as it did actually happen in this case, that 
 edifices of different dimensions, and an entirely different charac- 
 ter, would be required ; and it might happen, too, that the views 
 of one of the proprietors as to the value and extent of the new 
 buildings would essentially differ from those of the other, and the 
 division- wall which would suit one of them would be inapplicable 
 to the objects of the other." 
 
 In Hoffman v. Kuhn, 57 Miss. 746, it is ruled that where houses 
 having a party-wall are destroyed by fire, leaving the wall stand-
 
 Chap. XI.] COVENANTS RESPECTING PARTY-WALLS. 219 
 
 ing, the easement in the wall ceases and either owner may dispose 
 as he pleases of his part of the land ; and in Antom.archi'' s Exr. 
 V. Eusscll^ 63 Ala. 356, it is said that in case the party-wall is de- 
 stroyed by fire there is no implied condition to contri])ute toward 
 rebuilding it. The rule which, with the cessation of the neces- 
 sity for the existence of a right, abrogates the right itself, is sup- 
 ported by the reason of the thing, as well as by legal principles. 
 The mutual easements existed by force of the situation at the time 
 of the severance of the ownership of the two lots, and with the 
 change in that situation produced by the casual destruction of the 
 buildings, the reason for their existence ceased. Tlienceforth they 
 were inapplicable, and the lands were free for the lawful uses of 
 their owners. The easement was measured in its extent and du- 
 ration by the existence of the necessity for it. "When the neces- 
 sity ceased, as it did by the destruction of the buildings and wall, 
 the rights resulting from it ceased also.' 
 
 In Holmes v. Goring^ 2 Bing. 76, that principle was laid down 
 in the case of a right of way. "Where the easement was claimed by 
 a purchaser under a foreclosure of a mortgage describing the line 
 as running through the centre of a party-wall, the accidental de- 
 sti'uction by fire of the party -wall, as to the maintenance of which 
 there has been no grant of a perpetual right, will destroy all right 
 in either party to claim an easement in the property of the other 
 for the further support of a party-wall, notwithstanding some por- 
 tion of the foundation of the old wall remains standing.' 
 
 c. Covenants Respecting Party-Walls.— Personal 
 Covenants and Those Running with the 
 Land. 
 
 "With a very few exceptions the uniform current of authorities, 
 from the time of Webb v. Russell, 3 T. R, 393, to the present 
 day, requires a privity of estate to give one man a right to sue 
 another upon a covenant where there is no privity of contract be- 
 tween them ; and consequently where one who makes a covenant 
 with another in respect to land neither parts with nor receives any 
 
 ^Ogden v. Jennings, 62 N. Y. 531. 
 
 *Heartt v. Ki-uger (N. Y. June 3, 1890) 9 L. R. A. 135.
 
 220 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 title or interest in the land, at the same time with and as a part of 
 making the covenant, it is at best a mere personal one, which 
 neither binds his assignee nor inures to the benefit of the assignee 
 of the covenantee, so as to enable the latter to maintain an action 
 in his own name for a breach thereof.' Where the owners of ad- 
 joining premises make an agreement whereby one is to build a 
 party-wall, and the other, when he shall use it, is to pay half 
 its cost, it is a personal covenant, and creates an obligation en- 
 forceable only by the covenantee or his personal representatives. 
 It is not a covenant which runs with the land.' The right to re- 
 imbursement for the use of a party-wall is personal to the first 
 builder, and does not pass by grant of the lot.' The obligation 
 of all contracts is ordinarily limited to those by whom they are 
 made ; and if privity of contract is wanting, its absence must be 
 supplied by privity of estate.* In case of a covenant in a deed 
 that the party-wall of any building hereafter erected may be 
 placed, one half on the granted premises and one half on the ad- 
 jacent lot, the owner of the adjacent lot, whenever he uses it, ta 
 pay one half of the cost, his liability to pay rests either on the 
 covenant in the deed or on an implied assumpsit.* A party-wall 
 agreement made by the owner of a building, and not the owner of 
 the land, is a mere chose in action, the right to which is in the for- 
 mer, and cannot be transferred by the latter upon a conveyance of 
 the land." It goes to the personal representatives of deceased.' 
 It is said by the editors of Smith's Leading Cases in the notes to 
 Spencer's Case, Vol. 1, pt. 1 (7th Am. ed.), p. 219: "Whether a 
 covenant will or will not run with the land does not so much de- 
 pend on whether it is to be performed on the land itself, as on 
 
 ' 2 Washb. Real Prop. (4th ed.) 284. 
 
 ^Elding v. Chester, 19 Mo. App. 607, 2 West, Rep. 175; Oibson v. ITolden, 115 
 
 111. 199, 1 West. Rep. 677. See Hart v. Lyon, 90 N. Y. 663; Davids v. 
 
 Harris, 9 Pa. 503. 
 ^Cole V. Hughes, 54 N. Y. 445. See Todd v. Stokes, 10 Pa. 155; Gilbert v. 
 
 Drew, Id. 219; Davids v. Harris, 9 Pa. 503; Bloch v. Isham, 28 Ind. 37; 
 
 Coffin V. Talman, 8 N. Y. 465; Curtiss v. White, Clarke, Ch. 389. 
 *Spencer's Case, 5 Coke, *16, 29, 1 Smith, Lead. Cas. *137; Webb v. Bussell, 3 
 
 T. R. 393; Hurd v. Curtis, 19 Pick. 459. 
 ^Richardson v. Tobey, 121 Mass. 457. 
 '^McDonnell v. Culver, 8 Hua, 155 ; Qihson v. Holden, 115 111. 199, 1 West. 
 
 Rep. 677. 
 "^Ruling v. Chester, 19 Mo. App. 607, 2 West. Rep. 177.
 
 Chap, XI.] COVENANTS RESPECTING PARTY-WALLS. 221 
 
 whether it tends directly or necessarily to enhance its value, or 
 render it more beneficial or convenient to those by whom it is 
 owned or occupied; for if this be the case every successive as- 
 .signee of the land will be entitled to enforce the covenant ;" and 
 the same authority also says, p. 217 : " When, however, the cove- 
 nant relates to matters collateral to the land, its operation will be 
 confined strictly to the original parties to the agreement,'" 
 
 A covenant runs with the land when the liability for its perform- 
 ance or the right to enforce it passes to the assignee of the land 
 itself, A covenant is said to run with the reversion when the li- 
 ability to perform it or the right to enforce it passes to the as- 
 signee of the reversion." All covenants which relate to land and 
 are for its benefit run with it and may be enforced by each suc- 
 cessive assignee into whose hands it may come by conveyance or 
 assignment,* When the liability for its performance or the right 
 to enforce it passes to the assignee of the land itself, it is a cove- 
 nant running with the land; and when the liability to perform it 
 or the right to enforce it passes to the assignee of the reversion, it 
 is a covenant which runs with the reversion.* A covenant which 
 runs with the land may be enforced by each successive assignee 
 into whose hands it may come by conveyance or assignment,* 
 When a covenant is not of such a nature as the law permits to be 
 attached to the estate as a covenant running with the land, it can- 
 not be made such by agreement of parties,' There is a wide dif- 
 ference between the transfer of the burden of a covenant runnine* 
 with the land and of the benefit of the covenant ; or, in other 
 words, of the liability to fulfill the covenant and of the right to 
 ^xact its fulfillment. The benefit will pass with the land to which 
 it is incident, but the burden or liability will be confined to the 
 
 'See Wiggins Ferry Co. v. 07iio & M. E. Co. 94 111. 95. 
 
 "^Borsey v. St. Louis, A. & T. H. B. Co. 58 111. 67; Spencefa Case, 1 Smith 
 
 Lead. Cas, *137; Brewer v. Marshall, 18 N. J. Eq. 337, 
 ^Sterling Hydraulic Co. v. Williams, 66 111. 397; 1 Smith, Lead, Cas, Hare & 
 
 W. notes, 173, 
 *Dorsey v. St. Louis, A. & T. ff. R. Co. 58 111. 67; Spencer's Case, 1 Smith, 
 
 Lead. Cas. 137; Brewer v. Marshall, 18 N. J. Eq. 337. 
 '•Sterling Hydraulic Co. v. Williams, 66 111. 397. 
 ■^Gibson v. Holden, 1 West. Rep. 677, 115 111. 199; Masuryv. So^ithicorth, 9 
 
 Ohio St. 340 ; Olenn v. Canhy, 24 Md. 127; 1 Washb. Real Prop 438 ; 
 
 Brewer v. Marshall, 18 N. J. Eq. 337, 19 N, J, Eq. 537; 1 Smith, Lead. 
 
 Cas, (7th Am, ed,) 168, notes.
 
 222 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 original covenantor, unless the relation of privity of estate or ten- 
 ure exists or is created between the covenantor and covenantee at 
 the time when the covenant is made.' As no such privity of es- 
 tate or tenure often exists between the contracting parties when 
 the agreement for a party-wall is made, it is quite clear from the 
 authorities that the action for contribution, if one at law, must 
 often fail." There is no rule of law which can extend a sale of 
 lands to a sale of choses in action.' 
 
 In Cole V. Hughes, 54 K. Y. 445, the contract was in writing, 
 and stipulated that whenever Yoorhees, his heirs or assigns, should 
 use the wall, he or they should pay to Dean, who was to build it, 
 one half of the value of the part so used. The wall was built, and 
 the agreement recorded. Yoorhees' lot passed by several mesne 
 conveyances to the defendant, who was sued by Dean's assignee on 
 the contract. It was held that Yoorhees' contract to pay the value 
 of half of the wall when used was a personal covenant and did not 
 run with the land. The court — all concurring — reason as follows: 
 " Dean's right to compensation was in no way charged upon the 
 Yoorhees lot. There was therefore no privity of estate between 
 Yoorhees and Dean. There was simply privity of contract be- 
 tween them, and upon that relation could Dean enforce the cove- 
 nant ? Upon such a state of fact it is too clear to be doubted that 
 the burden of the covenant did not run with the Yoorhees lot. 
 . . . The obligation of all contracts is ordinarily limited to 
 those by whom they are made, and if privity of contract be dis- 
 pensed with, its absence must be supplied by privity of estate." 
 The court also decided that constructive notice by the record of 
 the Yoorhees covenant could not affect the rights of the parties. 
 Yoorhees having only made a personal contract, it would not bind 
 his assigns with or without notice. An agreement by an adjoining 
 owner to pay for a share of a party-wall when he should have oc- 
 casion to use it, does not run with the land, and does not bind a 
 
 J Cole V. Huglies, 54 N. Y. 445. 
 
 WannaJcer v. Biley, 14 Pa. 436; Bell v. Bronson, 17 Pa. 363; Ingles v. 
 
 Bringhurst, 1 U. S. 1 Dall. 341, 1 L. ed. 167 ; Joy v. Bonton Penny Sav. 
 
 Bank, 115 Mass. 60; Weld v. Nichols, 17 Pick. 538; Ooodrich v. Lincoln, 93 
 
 111. 360; Henry Co. V. Winnebago Drain Co. 53 111. 299, 454; Spencer's 
 
 Case, 5 Coke, 16. 
 ^Henry Co. v. Winnebago Drain Co. 52 111. 299, 454.
 
 Chap. XI.] COVENANTS KESPECTING PAKTY-WALL8. 223 
 
 purchaser, even if he has notice of it.' "Where parties are, by the 
 deed under which they take title, given one half of a wall as a 
 party-wall when or upon condition of making payment, and where 
 the owner of one lot has licensed the owner of the adjoining lot to 
 build a wall for himself resting one half of it on each lot, and re- 
 serving the privilege of thereafter purchasing one half the wall, as 
 a party-wall, the title to the whole wall may be regarded as appur- 
 tenant to the lot of the builder, and so passing by every convey- 
 ance of it, until the severance of the half by the payment of the 
 purchase money. The sale of the half of the wall does not occur, 
 nor the title to it pass, until the payment is made, and so, neces- 
 sarily, it is, constructively, a sale by the assignee of so much of the 
 wall. His right to the purchase money is not because he is the 
 assignee of a covenant running with the land, but because he is 
 the vendor of so much of the wall. Such, in effect, are, Wey- 
 man's Exrs. v. Hingold, 1 Bradf. 41; Maine v. Cumston, 98 Mass. 
 317; Burloch v. Peck, 2 Duer, 98 ; Keteltas v. Fen/old, 4 E. D. 
 Smith, 122, and Sharp v. Cheatham, 88 Mo. 448, 5 West. Eep. 373. 
 Where the deeds, from the same grantor to two adjoining owners 
 of land, contain each the provision that the center of the partition 
 wall of the house first erected on the land shall be placed on the 
 division line between the separate granted premises, and the party 
 first building such partition wall shall be entitled to receive from 
 the other party using the wall one half of its actual cost, this 
 gives mutual and equal rights in the party-wall to each of said ad- 
 joining owners and to the land upon which it stands, and the pay- 
 ment of one half of its cost is not a condition precedent to such 
 right." Describing the boundary line between two lots, in a 
 mortgage by a purchaser of both given upon one of them to se- 
 cure payment of purchase money, as running through the center 
 of a party-wall between the buildings upon them, will not amount 
 to an implied grant of a perpetual easement for the maintenance 
 of the party-wall as such, notwithstanding its destruction by fire, in 
 favor of one claiming title through a foreclosure sale under such 
 mortgage.^ 
 
 ^mdle V. Paggi (Tex. June 19, 1888) 1 L. R. A. 1. 
 ^Matthews v. Dixey, 149 Mass. 595, 5 L. R. A. 103. 
 ^Heartt v. Kruger (N. Y. June 3, 1890) 9 L. R. A. 135.
 
 224 IMPOSED DUTIES, PERSONAL. [Part L 
 
 In a proceeding in equity or where the rules of equity may 
 apply, the rule prevailing in actions at law, — as to the neces- 
 sity of the covenant running with the land, or as to the necessity 
 of there being a contemporaneous privity of tenure or estate in or- 
 der to make the covenant something more than a mere personal one, 
 in order to fasten it upon the land mentioned in the covenant, — 
 does not prevail, as in contemplation of a court of equity no such 
 privity is essential, nor that the covenant should run with the land. 
 In order to successfully invoke equitable interposition in cases of 
 this sort, all that is necessary is a valid agreement ' or covenant, 
 and notice thereof to the purchaser." The effect of such agree- 
 ment under seal is to create cross-easements as to each other which 
 bind all persons succeeding to the estates to which the easements 
 are appurtenant.' Such agreement is a covenant which runs with 
 the estate.* Where a party-wall is built equally upon the walls of 
 adjoining owners by one of them, and is afterwards used for a 
 building erected by the other, who does not pay to the owner one 
 half the value thereof as required by the statutes in force in most 
 of the States, but conveys the lot to one having full notice of the 
 facts, the purchaser is liable to the grantee of the person who built 
 the wall in an action to recover half the cost -thereof." When an 
 agreement and notice are shown, a court of equity, disregarding 
 the technical rules of law, and looking alone to the substance and 
 justice of the agreement, will enforce it as well against the pur- 
 chaser with notice as against the original party.' 
 
 Cases are quite frequent which illustrate and fortify this posi- 
 tion. Some of them do so in direct terms by adjudication; others 
 
 • In equity, a simple contract in regard to a party- wall, partly performed, 
 ■will be treated as a covenant, and run with the land. Rome, W. & 0. R. 
 Co. V. Ontario 8. R. Co. 16 Hun, 445. Where a parol contract has been 
 partly executed, parties are estopped from denying the existence of the 
 easement thereby created. Rindge v. Baker, 57 N. Y. 209. 
 
 ^Keating v. Korfhage, 88 Mo. 524, 4 "West. Rep. 509; Gibson v. Holden, 115 
 111. 199, 1 West. Rep. 677; Haling v. Chester, 19 Mo. App, 607, 2 West. 
 Rep. 175. 
 
 ^Roche Y. Ullman, 104 111. 11 ; Columbia College v. Lynch, 70 N. T. 440 ; 
 Tulk V. Moxhay, 2 Phili. Ch. 774. 
 
 *8avage v. Mason, 3 Gush. 504; Maine v. Cumston, 98 Mass. 317; Standish v. 
 Lawrence, 111 Mass. Ill; Dorsey v. St. Louis, A. & T. H. R. Go. 58 111. 68; 
 Sterling Hydraulic Co. v. Williams, 66 111. 397; Rindge v. Baker, 57 N. Y. 
 209. 
 
 «Pew V. Buchanan, 72 Iowa, 637. 
 
 ^ShoA-p V. Cheatham, 88 Mo. 498, 5 West. Rep. 373.
 
 Chap. XL] COVENANTS RESPECTING PARTY-WALLS. 225 
 
 of them by necessary analogy and irresistible inference. Thus, in 
 the early case of Campbell v. Mesier^ 4 Johns. Ch. 334, two par- 
 ties living in the City of New York, on adjacent lots, had on 
 the common line of their buildings a ruinous party-wall unfit to 
 stand, and one of the persons thus situated, being desirous of re- 
 building, proposed to the other coterminous proprietor to unite 
 with him in rebuilding the party-wall, but this request was refused. 
 AVhereupon Campbell, the proposer, proceeded to tear down his 
 own house, as well as the wall, and rebuild both. Thereafter Mesier, 
 who had refused to assist in rebuilding the party-wall, devised his 
 l^roperty to his son, who thereafter sold the lot to Dunstan, and in 
 the deed expressly conveyed to the latter the use of the party-wall, 
 for building, etc., and covenanted to indemnify him for so using 
 it. Dunstan then pulled his house down and erected a new one, and 
 in so doing made use of the new party-wall, but refused to pay for 
 liis proportionate share of that wall. Campbell then sued him in 
 an ordinary action, but was nonsuited on the ground that he had no 
 remedy at law. On this, Campbell filed his bill against both Mes- 
 ier and Dunstan, praying that the defendants be decreed to come 
 to a settlement with him touching the building of the party-wall, 
 and to contribute and pay one half of the value thereof, etc. Up- 
 on this state of facts, the prayer of the bill was granted, and a de- 
 cree entered accordingly, Chancellor Kent remarking : " I have 
 not found any adjudged case in point, but it appears to me that 
 this case falls within the reason and equity of the doctrine of con- 
 tribution which exists in the common law, and is bottomed and 
 fixed on general principles of justice. In Sir William Harherfs 
 Case, 3 Coke, fol. 11, p. 30, and in Bro., Abr., title Suite and Contri- 
 hution, many cases of contribution are put and the doctrine rests 
 on the principle that where the parties stand in equali jure the law 
 requires equality, which is equity, and one of them shall not be 
 obliged to bear the burden in ease of the rest. It is stated in 
 Fitzh., N. B. 162 h, that the writ of contribution lies where there 
 are tenants in common, or who jointly hold a mill pro indiviso 
 and take the profits equally, and the mill falls into decay, and one 
 of them will not repair the mill, the form of a writ is o-iven to 
 compel the other to be contributory to the reparations. In Sir 
 William Rarberts Case, supra, it was resolved that when land 
 15
 
 226 IMPOSED DUTIES, PERSONAL. [Part 1. 
 
 was charged by any tie the charge ought to be equal, and one 
 should not bear all the burden ; and the law on this point wa& 
 grounded in great equity, . . . The doctrine of contribution 
 is founded, not on contract, but on the principle that equality of 
 burden, as to a common right, is equity, and the solidity and ne- 
 cessity of this doctrine were forcibly and learnedly illustrated by 
 Lord Ch. Baron Eyre, in the case of Bering v. Earl of Win- 
 chelsea^ 1 Cox, Cas. 318. . . . The obligation arises, not 
 from obligation, but from the nature of the relation, or quasi ex 
 contractu ; and as far as courts of law have, in modern times, as- 
 sumed jurisdiction upon this subject, it is, as Lord Eldon said (14r 
 Yes. Jr. 164), upon the ground of an implied assumpsit. The de- 
 cision at law, stated in the pleadings, may therefore have arisen 
 from the difficulty of deducing a valid contract from the case; that 
 difficulty does not exist in this court, because we do not look to a 
 contract, but to the equity of the case as felt and recognized, ac- 
 cording to Lord Coke, in every age, by the judges and sages of 
 the law." And the cause was referred to a master to ascertain the 
 cost of the wall. Afterwards, the cause coming on again before 
 the chancellor, he ruled that the expense of rebuilding the wall 
 was an equitable charge on the wall, and the owner, for the time 
 being, exercising his right in the new wall, was equitably bound 
 to contribute ratably to the expense of the necessary reparation. 
 And Dunstan, having purchased with actual notice of the charge 
 or claim, was ordered to pay the moiety of the expense of re- 
 building the wall. 
 
 In Rindge v. BaTcer, 57 N. Y. 209, two adjoining proprietors 
 entered into a parol agreement to jointly build a party-wall, one 
 half on the premises of each, and accordingly built a portion of 
 the wall, but one of them refused to proceed ; the other, having 
 planned his building in reliance on the contract being performed, 
 was held not confined to his remedy for^ specific performance, but 
 might go on and complete the wall, and in an equitable action re- 
 cover of the other proprietor one half of the expense. In Huclc 
 V. Flentye, 80 111. 258, two adjoining proprietors, without any ex- 
 press agreement as to who should pay for the party-wall, agreed ta 
 rebuild together, and did so, and one of them, having built the en- 
 tire party-wall, was held entitled to recover in an action of assump-
 
 Cliap. XI.] COVENANTS RESPECTING PARTY-WALLS. 227 
 
 sit one half of the expense from the other proprietor, and this 
 ruling was placed on the ground of contribution and of an implied 
 promise. 
 
 In Sandej's v. Martin^ 2 Lea, 213, where one owner of a party- 
 wall made additions to it for his own convenience, and the co- 
 owner afterwards used such additions when enlarging her own 
 building, it was held on bill brought by the first party that he 
 could compel contribution from the other for one half the expense 
 of such additions. The case of Piatt v. Eggleston, 20 Ohio St. 
 414, was one where W, the owner of a lot, sold and conveyed one 
 half of it to P, agreeing at the same time in a separate writing, 
 not under seal, that P might erect one half of the wall of his 
 building on the part of the lot retained, and that "W, when he 
 should sell the residue of the lot, would require the purchaser or 
 his assigns, when they should use the party-wall, to pay one half of 
 the expense to P or his assigns. P built on his lot, and after that 
 conveyed it, "with the appurtenances," etc., with full covenants of 
 warranty to E. W afterwards conveyed by deed of release to C 
 the remainder of the lot without requiring him or his assigns to 
 pay the moiety of the expense of the party-wall, when he should 
 build, nor is it stated that C was aware of the agreement previous- 
 ly made. C thereupon built on his portion of the lot thus pur- 
 chased, and in building used the party-wall, and it was held in an 
 equitable proceeding by E that the effect of the agreement was 
 to give to P and his assigns a right iu equity to an easement 
 for the support of one half of the wall on the premises re- 
 tained by W; that it was immaterial that the agreement was not 
 inserted in the deed to P, and that it was not under seal, and 
 that it was not a covenant running with the land ; that as the fii'st 
 lot sold was liable to be subjected under the agreement to the bur- 
 den of the use of the wall for the benefit of the adjoining premi- 
 ses, E, the then owner, was equitably entitled to compensation 
 for the one half of such wall, and that this right of compensation 
 passed as an appurtenance by the deed from W to P, and from 
 the latter to plaintiff in the same way. 
 
 In Roche v. Ullman, 104 111. 11, it was ruled in a proceeding in 
 equity that where owners of adjoining premises make an agreement 
 under seal for themselves, heirs and assigns, whereby one is to
 
 228 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 build the party-wall, and tlie other, when he uses it in the con- 
 struction of his building, is to pay half of the cost of such wall, 
 the effect of such agreement is to create cross-easements as to each 
 owner, which bind all persons succeeding to the estates to which 
 the easements are appurtenant; and a purchaser of the estate of 
 the owner so contracting would take it burdened with the liability 
 to pay one half the cost of the wall whenever he availed himself of 
 its benefits. The authorities already cited, and other cases which 
 may be found, support this view, that such agreements are equita- 
 ble easements or servitudes, constituting charges on the land, and 
 capable of enforcement in equity against the land itself where the 
 ao-reement or covenant is of an affirmative character, or susceptible 
 of being enforced in other appropriate modes where the agree- 
 ments are negative or restrictive in their nature. Thus where ad- 
 ioinino- owners of lands by mutual covenants imposed certain con- 
 ditions on their respective lands as to the character of the build- 
 ings which should be erected on those lands, it was held that equity 
 would enjoin the parties, or those claiming under them with no- 
 tice from any violation of such covenants; that such covenants 
 constituted reciprocal easements impressed upon the lands ; and 
 that whether there was any privity of estate between the mutual 
 covenantors and covenantees, whether the covenant was one run- 
 ning with the land or a collateral covenant, or a covenant in gross, 
 or whether an action at law could be sustained upon it, was not 
 material as affecting the jurisdiction of a court of equity in afford- 
 ino- relief upon a disturbance of the easements created by the orig- 
 inal contracting parties. The language of courts and judges has 
 been very uniform and very decided on this subject, and all agree 
 that whoever purchases lands upon which the owner has imposed 
 an easement of any kind, or created a charge which could be en- 
 forced in equity against him, takes the title subject to all easements, 
 equities and charges, however created, of which he has notice.' 
 If an equity is attached to property by the owner, no one pur- 
 chasing with notice of that equity can stand in a different situation 
 from the party from whom he purchased.' The distinction be- 
 tween the binding obligation at law of covenants not running with 
 
 ^Trustees v. Lynch, 70 N. Y. 440, and cases cited. 
 "^Tulk V. Moxhay, 2 Phill. Ch. 774.
 
 Ciiap. XI.] COVENANTS RESPECTING PARTY-WALLS. 229 
 
 the lands and the equitable rights which equity enforces in such 
 cases is recognized by the author of the American note to Spen- 
 cer's Case^ 1 Smith, Lead. Cas. (6th Am. ed.) 1G7. He says, when 
 speaking of such covenant : " But although the covenant, wlien 
 regarded as a contract, is binding only between the original par- 
 ties, yet, in order to give effect to their intention, it may be con- 
 strued by equity as creating an incorporeal hereditament (in the 
 form of an easement) out of the unconveyed estate, and rendering it 
 appurtenant to the estate conve^'cd; and when this is the ease, sub- 
 sequent assignees will have the rights and be subject to the obliga- 
 tions which the title or liability to such easement creates.'" And it 
 is quite immaterial, so far as equitable interposition and relief are 
 concerned, whether the covenant or agreement be affirmative or re- 
 strictive in its character.' Frequent instances are given by the 
 learned author just cited, of the enforcement of both kinds of cove- 
 nants, and he says: "I have, as it will be seen, continued to state the 
 doctrine in its most general form as applying to affirmative as well 
 as to restrictive covenants, and as rendering the owner liable to the 
 affirmative duty of specifically performing the covenant, as well as 
 to the negative remedy of restraint from violating it, notwith- 
 standing the very recent decisions by the English Court of Appeal, 
 holding that the doctrine applies only to restrictive covenants, and 
 does not extend to those which stipulate for affirmative acts. In 
 my opinion, the doctrine has been fully established in its most 
 general form, without such limitation, by the overwhelming M'eight 
 of authority, English and American.'" And there would seem 
 to be but little of either justice or sound reason in the doctrine 
 which enforces the equities arising from the agreement of parties 
 to refrain from doing certain acts towards a certain subject matter 
 and yet refuses to enforce a similar agreement by compelling the 
 performance of acts embraced within its terms. 
 
 It is immaterial that the agreement regarding a party-wall does 
 not contain the word " assigns." This point has been so ruled in the 
 case of Wilson v. Hart, 2 Hem. & M. 551, L. K. 1 Ch. App. 463, 
 
 'See also, treating of the same subject, Parker v. Nightinfinle, 6 Allen, 341 ; 
 
 Whitney v. Union R. Co. 11 Gray, 359; Kirkpatnck\.' Peshine, '34 N. J. 
 
 Eq. 206; Burbank v. Pillshury, 48 N. H. 475; Norjieet v. CrominU, 70 N. 
 
 C. 634. 
 *2 Pom. Eq. Jur. 689, and cases cited; 3 Pom. Eq. Jur. § 1295, and notes. 
 «3 Pom. Eq. .Jur. § 1295.
 
 230 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 where the covenant was restrictive iu its character, and bound the 
 purchaser, not naming "assigns," that no building erected or to be 
 erected should be used for certain purposes ; and it was held that 
 the assignee of such purchaser, having notice of the covenant, 
 would be bound thereby in equity and required to perform it, not- 
 withstanding it was also ruled that the covenant was a mere per- 
 sonal engagement, and did not run with the land. And aside 
 from any precedent to that efEect, if, in consequence of the agree- 
 ment of the original parties to an equitable burden, a servitude or 
 easement was created on the land conveyed, the purchaser, having 
 notice thereof, was, of necessity and on the most familiar of all 
 equitable principles, bound thereby. As is aptly said by Bigelow, 
 Ck. J., in Parker v. Nightingale, 6 Allen, 341: "A purchaser of land, 
 with notice of a right or interest in it existing only by agreement 
 with his vendor, is bound to do that which his grantor had agreed 
 to perform, because it would be unconscientious and inequitable 
 for him to violate or disregard the valid agreements of the vendor 
 in reo-ard to the estate, of which he had notice when he became the 
 purchaser." So if he took under a quitclaim deed from his grant- 
 or. This, according to a large number of authorities, would con- 
 stitute him a purchaser with notice.' And if, in addition to being 
 a purchaser under a quitclaim deed, he did not give full value for 
 the property, the case against him in a court of equity will be 
 quite strong.' 
 
 Where defendant agrees to pay plaintifE a certain sum for the 
 use of the latter's brick wall to support the defendant's building to 
 be erected, and uses such wall as agreed, while, if the agreement is 
 within the Statute of Frauds, no recovery can be had as on an ex 
 press contract, yet defendant is liable for use and occupation ; and 
 the parol agreement may be considered in estimating the damages. 
 One who has used a brick wall belonging to an adjoining owner 
 for the purpose of supporting his own building, under an agree- 
 ment to pay a specified sum therefor, cannot, after enjoying the 
 
 ^Bidgeway v. HolUday, 59 Mo. 444; Stoffel v. Schroeder, 63 Mo. 150; Stivers v. 
 Home Id. 473; Mann v. Best, Id. 491; Oliver v. Piatt, 44 U. S. 3 How. 
 333 11 L. ed. 622; May v. LeClaire, 78 U. S. 11 Wall. 217, 20 L. ed. 50; 
 Bragg v. Paulk, 42 Me. 502; Smith v. Bunion, 42 Iowa, 48; Watson v. 
 Phelps, 40 Iowa, 482; Springer v. Bartle, 46 Iowa, 688; Thorp v. Keokuk 
 Coal Co. 48 N. Y. 253; Marshall v. Roberts, 18 Minn. 405; Bodgers v. Bur- 
 chard, 34 Tex. 441. 
 
 ^Sharp V. CJieatham, 88 Mo. 498, 5 West. Rep. 373.
 
 Chap. XI.] LIABILITY FOR INJURY FROM PARTY-WALL. 231 
 
 use of the wall until it is destroyed by tire, evade payment of the 
 amount due for use and occupation by the fact that the contract 
 was within the Statute of Frauds, as it has been taken out of the 
 operation of the Statute by complete performance on the part of 
 the owner of the wall.' But the incidental lateral support which 
 may be given by a party-wall to a perfectly independent wall 
 which only touches it at different and distinct places, and where 
 the independent wall is sufficient in and of itself to stand all the 
 ■demands which may be made upon it for years to come, is not 
 within the terms of a contract for the use of a party-wall for a 
 stipulated consideration.' But if he build against it, even with- 
 out inserting timbers, he is liable.' 
 
 d. LiaMlity for Accidental or JVegligent Injury in 
 Constructing, Elevating or Repairing Farty- 
 Wall. 
 
 "Where one is engaged in work upon his own land he is required 
 to use care that he cause no unnecessary injuries to his neighbor.* 
 And the rule is still more exacting where he invades in the use 
 -of an easement his neighbor's land, and where his operations im- 
 peril, and perhaps necessarily destroy, for the time being, his 
 neighbor's property, as in the work about a party-wall. 
 
 Thus, where a party-wall was taken down by one owner for his 
 own purposes, and the contractor, under his agreement, attempted 
 to shore up the joists, etc., in the adjoining building, but did not 
 ■do this sufficiently, and in consequence the building got out of 
 plumb and was generally injured, the employer was held liable for 
 the contractor's negligence.* 
 
 Where appellant, one of the owners of a party-wall, desiring 
 to rebuild his house, employed a contractor, binding him not 
 to cut into the wall, but the workmen nevertheless did cut into 
 into the wall, and injured respondent's building, by destroying the 
 party-wall, of which he was joint owner, it was ruled that the ap- 
 pellant could not establish a good defense to the respondent's 
 
 > Walker v. Shackelford, 49 Ark. 503. 
 
 ^Kingsland v. Tucker, 115 N. Y. 574. 
 
 ^Greenwald v. Kappes, 31 Ind. 216. 
 
 *Anfe, p. 39, note 1, p. 199, note 2. See Judd v. Cusliing, 22 Abb. N. C. 358, 
 
 375. 
 ^Fowler v. Saks (D. C. March 24, 1890) 7L. R. A. 649.
 
 232 IMPOSED DUTIES, f ERSOJ^JAL. [rait i. 
 
 claim for damages by simply proving tliat it was not in the least 
 necessary to cut the wall, and that the contractor was under an 
 obligation not to do it. He must further prove that it could not 
 reasonably have been expected that any workman of ordinary skill 
 in such operations, who was neither insane nor dishonest, would 
 have dreamed of cutting the wall. As it did not appear that the 
 cutting of the wall was an act of that improbable description, or 
 that the act of the contractor's workmen was dictated by any other 
 motive than a desire to perform their work efficiently, or that they 
 were deficient in ordinary skill, they ought to have been specially 
 directed not to interfere with the wall, and care should have been 
 taken that they obeyed the direction. The peril to the plaintiff's 
 premises continued as long as there remained anything to be done 
 which could interfere with the stability of the wall. Till such 
 peril was ended it was the duty of the appellant to see that there 
 was no want of supervision and due precaution to j)revent injurious 
 results. These precautions ought no doubt to have been taken by 
 the contractor, but in accordance with tlie principle laid down in 
 Bower v. Peate^ L. E. 1 Q. B. Div. 321, and Dalton v. Angus, 
 L. E.. 6 App. Cas. 829, it was no less the duty of the appellant, as 
 between himself and the respondent, to see that they were strictly 
 observed.' 
 
 In a suit for damages for negligence in the erection of a wall 
 abutting against a party-wall, \vhicli by reason of insufficient 
 support fell upon and injured plaintiff's building, where the de- 
 fense was that the contractors and not the defendants were liable, 
 it was ruled that it was proper to instruct the jury that if the neg- 
 ligence which produced the injury was not in the workmanship or 
 the materials used by the contractors, but in the plans and specifi- 
 cations, then the owners of the building, contracting for the im- 
 provement, were liable ; and that, as in that case the contract pro- 
 vided that the work should be done in a good and workmanlike 
 manner, or in the very best maimer, these words must relate to the 
 things specified to be done, the contract being general in its terms, 
 and referring to the specifications. And it being provided in the 
 contract that in an old building to be remodeled " the partitions, 
 walls, archways, stairs, etc., that conflict with the plans, are to be 
 
 ^ Tarry v. Ashton, L, R. 1 Q. B. Div. 314; Hughes v. Percival, L. R 8 App. 
 Cas. 443.
 
 Chap. XL] LIABILITY FOR INJURY FROM PARTY-WALL. 233 
 
 taken down or filled up as may be required," and "the old work to 
 be joined on the new in the very best manner, and anchored 
 where directed," it was held that the directions were to be t^iven 
 by the defendants.' If the manner in which the work was to be 
 done under the terms of the contract did make it danfjerous to 
 plaintiff's property, and injury did result therefrom; or if defend- 
 ant reserved to itself, to any extent, a control over the contractors 
 as to the manner in which certain work should be done ; or if the 
 manner in which it was to be done was left open for the directions 
 of defendant, and defendant failed to give proper directions on that 
 subject, by reason of which the damage ensued, — then defendants 
 were liable." 
 
 Indeed, the rule ie stated that where one owner does any work 
 about a party-wall, except such as is necessary to make repairs, 
 or keep it in safe condition, when due care only is required,* 
 and he does the work without the co-operation of the adjoining 
 proprietor, he does it at his peril, and must answer for any injuri- 
 ous consequences without regard to the question of negligence.* 
 There must, however, be a right of support shown beyond that 
 of mere juxtaposition/ Where, however, the owners of the 
 party-wall each employ an agent in the work of removal, neither 
 can recover of the other. " Since the wall was taken down by 
 both, neither can impute negligence to the other."* And they 
 will be jointly liable for permitting it to fall, from neglect to re- 
 pair, and cause injury to others.' 
 
 ^Lancaster v. Connecticut Mut. L. Ins. Co. 92 Mo. 460, 10 West. Rep. 409. 
 
 See Crawshaw v. Sumner, 56 Mo. 528 ; 3 Waslib. Real Prop. 330-332 ; 
 
 Earl V. Beadleston, 10 Jones & S. 294. 
 ^Horner v. Nicholson, 56 Mo. 220; Lottman v. Barnett, 62 Mo. 162; Garret- 
 
 zen V. Duenckel, 50 Mo. 104:-, Rowe v. Newmarch, 12 Allen, 49. 
 ^Stedman v. Smith, 8 El. & Bl. 1; Evans v. Jayne, 23 Pa. 34 ; Brooks v. 
 
 Curtis, 50 N. Y. 639; Partridge v. Gilbert, 15 N. Y. 601. 
 *Hammond v. Schiff, 101 N. C. 161; Sc?ule v. Brokhahus, 80 N. Y. 614; 
 
 Gorliam v. Gross, 125 Mass. 232; Eno v. Del Vecchio, 6 Duer, 17; Brooks v. 
 
 Curtis, 50 N. Y. 639: Milne's Appeal, 81 Pa. 54; Webster^. Stevens, 5 Duer, 
 
 553. See Potter v. White, 6 Bosw. 644; Phillips v. Bordman, 4 Allen, 147; 
 
 Dowling v. Hennings, 20 Md. 179 ; Uieatt v. Morris, 10 Ohio St. 523 ; 
 
 Bradbee v. Christ's Hospital, 4 Man. & G. 714; Stedman v. Smith, 8 El. & 
 
 Bl. 1. But see Hart v. Baldwin, 1 N. Y. Leg. Obs. 139; Shrieve v. Stokes, 
 
 8 B. Mon. 453. 
 ^Napier v. Bulwinkle, 5 Rich. L. 311, 324 ; Partridge v. Gilbert, 15' N. Y. 
 
 601, Q12; Peyton v. St. Ttumias Hospital, 9 Barn. &"C. 725. 
 ^Hill V. Warren, 2 Stark. 378. See Chauntler v. Robinson, 4 Exch. 163. 
 ''Elander v. McGrath, 35 Pa. 128.
 
 CHAPTER XIl. 
 
 USE AND NEGLIGENCE AS AFFECTING EASEMENTS. 
 
 Sec. 20. Use to Create Prescription. 
 
 Sec. 21. Extent of Presumed Right Limited hy User on Wliich Pre- 
 sumption Rests. 
 Sec. 23. Negligence as Affecting Easements. 
 
 a. Negligent Failure to Discover Contimious or Apparent 
 
 Easement. 
 
 b. Negligence in the Use, or in Interrupting the Exercise, of 
 
 an Easement. 
 
 1. In a Way. 
 
 2. In Light. 
 
 3. In Water Naturally or Artificially Flowing. — Har- 
 
 vesting Ice. 
 
 c. Identity of Use. 
 
 d. Appropriatiyig for an Easement. 
 
 Section ^0.— Us6 to Create Prescription. 
 
 The doctrine of presuming a deed or grant is not confined to 
 cases involving title to tracts of land, but is applied in aid of ease- 
 ments and incorporeal hereditaments, which have been for a suffi- 
 ciently long term claimed and used under circumstances indicating 
 the probability of a grant.' The doctrine as to presumptions of a 
 grant is the same, whether the grant relates to a corporeal or incorpo- 
 real hereditament.'' Thus the easement of a right of way lies only in 
 grant, or by prescription, which supposes a grant.^ Twenty years' 
 uninterrupted and unqualified enjoyment of a way across the 
 lands of another has been said to be decisive evidence of a grant 
 •of the right of way.* The use must be confined to a definite 
 
 ^Derrickson v. Springer, 5 Harr. 21. 
 
 ^Ricard v. Williams, 20 U. S. 7 Wheat. 60, 5 L. ed. 398. 
 
 ^Burlington & C. R. Co. v. Schweikart, 10 Colo. 178. 
 
 * Lansing y.Wiswall, 5 Denio, 213; Blake v. Exerett, 1 Allen, 248; Hill v. 
 Crosby, 2 Pick. 4(j6; Millers. Oarlock, 8 Barb. 153; Pillsbury y. Brown, 
 82 Me. 450; Gay v. Boston & A. R. Co. 141 Mass. 407, 2 New Eng. Rep. 
 240; McKemie v. Elliott (111. June 12, 1890) 24 N. E. Rep. 965; Nicholh 
 V. \Ventwo7-th, 100 N. Y. 455, 1 Cent. Rep. 737; Wiley v. Norfolk S. R. Co. 
 96 N. C. 408; Zigefoose v. Zigefoose, 69 Iowa, 391 ; Dexter v. Tree. 117 111. 
 .532. 5 West. Rep. 897.
 
 •Chap. XII,] USE TO CKEATE PKESOBIPTION. 'Z35 
 
 line.' The fact that when the ground was soft the adverse user 
 turned out of the way at a certain point and made several distinct 
 tracks there will not affect the right.' A servitude may be acquired 
 by statute in a shorter time, — thus, in Louisiana in ten years, — and 
 may be proved by parol.* The habitual use of a foot-path across 
 one's premises for years, without objection, warrants the finding 
 of a license from him therefor ; * and whether the land be cleared, 
 inclosed, etc., makes no difference, * although an adverse right of 
 way through woodland or uninclosed land cannot be acquired by 
 merely passing over such lands, without any working or other act to 
 designate the way.' A private easement for some purposes may be 
 acquired in a public highway.* But a private right of way can- 
 not be acquired in a street while it is a public highway, by using 
 the street for the purpose of travel." When the owner of an es- 
 tate has been in the habit of using, for the benefit of the estate, an 
 easement, created by himself over part of the estate, and sells the 
 servient part, there is no presumption of a reservation of the ease- 
 ment, except in case of absolute necessity." An easement where- 
 by water collecting upon land must be allowed to find an outlet, 
 even though it overflows adjacent land, may be acquired by pre- 
 scription." 
 
 Exclusive and uninterrupted user of a way, by the inhabitants 
 of a town, for more than twenty years, will warrant the pre- 
 sumption of a grant ; but it will be technically a private way, 
 and any other person than an inhabitant passing on it will be a 
 trespasser ; if it is obstructed, no indictment will lie for the ob- 
 struction ; nor will the town be liable to punishment for neglecting 
 
 ^Johnson V. Lewis, 47 Ark. 66; South Branch B. Co. v. Parker, 41 N. J. Eq. 
 
 489, 4 Cent. Rep. 63. 
 ^Cheney v. O'Brien, 69 Cal. 199. 
 ^Kennedy v. McCollam, 34 La. Ann. 568. 
 ^Driscoll V. Newark & R. L. & G. Co. 37 N. T. 637. 
 ^ Worrall v. Rhoads, 2 Whart. 427. 
 ^Watt V. Trapp, 2 Rich. L. 136; Gibson v, Durham, 3 Rich. L. 85; Caroon 
 
 V, Doocey, 3 Jones, L. 23. 
 ''Ross V. Thompson, 78 Ind. 90. 
 
 '^Webster v. Lowell, 142 Mass. 334, 2 New Eng. Rep. 674. 
 ^Shoemaker v. Shoemaker, 11 Abb. N. C. 80; Kelly v. Dunning, 43 N. J. Eq. 
 
 62, 8 Cent. Rep. 600 ; Fetters v. Uumphreys, 18 N. J. Eq. 260. 
 *oConklin v. Boyd, 46 Mich. 56 ; Murchie v. Gates, 78 Me. 300, 2 New Eng. 
 
 Rep. 435.
 
 2'66 IMi'OSlCD DUTIES, PERSONAL. [Fart J.. 
 
 to repair it.' Occupation of a stream not navigable for twenty 
 years is presumptive evidence of an original grant of a riglit to 
 use the water.* A grant upon condition may be presumed from 
 use and enjoyment for the term of twenty years adversely and 
 uninterruptedly, and especially upon the performance of a duty 
 connected with the easement." The time of enjoyment requisite 
 for the prescription is deemed to be uninterrupted when it is con- 
 tinued from ancestor to heir and from seller to buyer." The mere 
 use of a way over uninclosed land will never ripen into a pre- 
 sumption of adverse right ; the prescription must be founded upon 
 implied assertions of the right on the one part, or admissions on the 
 other ; " for if the enjoyment can be referred to the leave or favor of 
 the party over whose lands the right of way is claimed, or can be 
 placed on any other footing than a claim or assertion of right, this 
 will repel the presumption of a deed or grant." 
 
 The enjoyment of an incorporeal hereditament furnishes a pre- 
 sumption only of a legal title, confirmed or repelled by the circum- 
 stances incident to its use ; as the enjoyment is used merely by 
 way of evidence to raise the presumption of a grant, the manner 
 of the enjoyment, that it was by mere favor, and not as a right, 
 may be used as evidence to rebut that presumption.' Hence, the- 
 presumption has been held rebutted by proof that the land OAvner 
 placed gates across the way claimed ; * or that he ploughed up the 
 way, declaring that the person claiming the use had no right, al- 
 though such person was not present;' or that he has habitually 
 broken and interrupted the use whenever he thought proper.'" 
 
 To be adverse, within the rule that the enjoyment of an easement 
 
 Worn. V. Low, 3 Pick. 408. 
 
 ^Bullen V. Runnels, 2 N. H. 255. 
 
 ^Watkins v. Peek, 13 N. H. 360. 
 
 43 Kent, Com. 444; Debolt v. Carter, 31 Ind. 355; Cady v. Conger, 19 K Y. 
 256; Irwia v. Bixion, 50 U. S. 9 How. 10, 13 L. ed. 25; Onstott v. Murray, 
 22 Iowa, 457; Simmons v. Cornell, 1 R. I. 519; Atty-Gen. v. Morris d: E. 
 B. Co. 19 N. J. Eq. 386, 575; Ang. Highways, § 132. 
 
 ^Sim^ V. Davis, Ciieves, L. 1. 
 
 '^Pue V. Pae, 4 Md. Ch. 386; Evans v. Dana, 7 R. I. 306; Hulburt v. Leon- 
 ard, Brayt. 201 ; Ingraham v. Hough, 1 Jones, L. 39. 
 
 "^Hall V. McLeod, 2 Met. (Ky.) 98. 
 
 ^Com. V. Newbury, 2 Pick. 51; Ingraham v. Hough, 1 Jones, L. 39. 
 
 ^Barker v. Clark, 4 N. H. 380. 
 
 ^oRirschmer v. Western & A. R. Co. 67 Ga. 760.
 
 ■Chap. XII.] CSE TO CREATE PRESCRIPTION. 237 
 
 must be adverse to raise the presumption of a grant, such onjo}'- 
 ment must constitute a legal injury for which an action would lie; 
 the receiving of light coming over defendant's house into plain- 
 tiff's windows does not amount to such legal injury and cannot 
 raise the presumption of a grant.' The undisturbed enjoyment 
 of any known legal right, such as the flowing of lands for the sup- 
 port of mills, etc., for any term of time, furnishes no presumptive 
 evidence of a grant.^ For an underground drain, adverse user 
 will only run from time of notice to the person against whom it is 
 to be claimed.* General usage, like that of depositing lumber on 
 the banks of a river, not accompanied by a claim of title, or an in- 
 tention of occupying the land to the exclusion of the owner's 
 rights, cannot furnish any legal presumption of a grant.* But, 
 in general, that the enjoyment was adverse may be presumed, if 
 the user was notorious and in the ordinary manner, and not under 
 circumstances showing it to have been by leave and favor, or by 
 the courtesy of the owner. ^ 
 
 A grant of a private way cannot be presumed from a user by 
 claimant in common with other persons, ' nor where it is opeu 
 to and used by the public.^ If the presumption of dedication for 
 a way is to be founded on user alone, user for twenty years, the stat- 
 utory term, must be shown ; but a shorter period will suffice where 
 acts of the land owner indicating an intent to dedicate are shown,* 
 
 To create the presumption of a grant of a right of way, the cir- 
 cumstances attending its use must be such as to make it appear 
 that it was established for the benelit of the claimant, or that it 
 was accompanied by a claim of right or by such acts as manifested 
 an intention to enjoy it without regard to the wishes of the owners 
 of the land.' 
 
 ^Napier v. Bulwinkle, 5 Rich. L. 311. 
 
 *Tinkham v. Arnold, 3 Me. 120. 
 
 *Trecvdwell v. Inslee, 120 N. Y. 458; Munson v. Heid, 46 Hun, 399. 
 
 *Bethum, V. Turner, 1 Me. 111. 
 
 ^EsUng v. Williams, 10 Pa. 126. 
 
 ^Day V. Allender, 22 Md. 511. But see McEenzie v. Eniott (111. .June 12 1890) 
 
 24 N. E. Rep. 965; Wanger v. Hippie (Pa. March 19, 1888) 11 Cent.' Kep. 
 
 776. 
 "f a Neil V. Blodgett, 53 Vt. 213. 
 ^Denning v. liooTne, 6 Wend. 651. 
 ^Dexter v. Tree, 117 111. 532, 5 West. Rep. 897.
 
 238 IMPOSED DUTIES, PERSONAL. [Part 1.. 
 
 Section 21. — Extent of Presumed Right Limited hy 
 User on Which Presumption Rests. 
 
 A prescription presupposes a grant and ought to be continued 
 according to the intent of the original creation. A party 
 claiming or asserting an easement under a grant cannot claim 
 any other or greater easement by user or prescription than that 
 embraced in the grant, as a right can be acquired by prescription 
 only where a grant can be presumed.' The leading case on the 
 subject is Howell v. King, 1 Mod. 190, decided by the English 
 Court of Common Pleas two centuries ago. The case was: A 
 had a way over B's ground to Black Acre, and drove his cat- 
 tle over B's ground to Black Acre, then to another place be- 
 yond. The question was whether this was lawful. It was urged 
 for the defendant that when his cattle were at Black Acre, he- 
 might drive them whither he would. On the other side, it waa 
 said that if so the defendant might purchase 100 or 1000 acres ad- 
 joining Black Acre, to which he prescribed to have a way, and 
 plaintiff would lose the benefit of his land; that a prescription 
 presupposes the grant and ought to be continued according to the 
 intent of the original creation. To this the court agreed and gave- 
 judgment for the plaintiff. The case states the law and the reason 
 of the law and it has been followed uniformly in both England 
 and America.* 
 
 A right of way cannot be established by license unless it 
 be specific.^ A parol license of a way is insufficient.^ But 
 a right of way granted, its locality and duration not defined, 
 may become fixed by use and acts of acquiescence of the parties, 
 and encroachments thereon will be restrained." The conveyance 
 of a right of way over a parcel of land, not defining its limits, but 
 simply designating the place where it might reasonably be enjoyed, 
 does not operate to pass a right to the unobstructed use of the en- 
 
 ^Stearns v. Richmond Paper Mfg. Co. (Va. Sept. 17, 1890) 14 Va. L. J. 465^ 
 Shrewsbury v. Brown, 25 Vt. 197; Hart v, Chalker, 5 Conn. 811. 
 
 ^Lawton v. Ward, 1 Ld. Raym. 75; Skull v. Olenister, 16 C. B. N. S. 105; 
 Allan V. Gomme, 11 Ad. & El. 759; Davenport v. Lamson, 21 Pick. 72; 
 Shroder v. Brenneman, 23 Pa. 848; French v. Marstin, 24 N. H. 440. 
 
 '^Leonard v. Hart (N. J. Dec. 31, 1885) 1 Cent. Rep. 673. 
 
 *Burlington & C. R. Co. v. Schweikart, 10 Colo. 178. 
 
 ^Snyder'8 App. (Pa. Jan. 17, 1887) 6 Cent. Rep. 270.
 
 Chap. XII.] PRESUMED KIGHT LIMITED BY USER. 235) 
 
 tire lot described." A grant of way over one's premises, without 
 limitation or restriction, is understood to be a general way for all 
 purposes." A private way over a railroad track may be acquired 
 by an individual by prescription, notwithstanding a public statute 
 imposing a penalty upon anyone walking on the railroad track 
 without the company's consent.' In trespass upon railroad lines, 
 where the defense is right of way, evidence that for ten years the 
 railroad maintained a crossing over the lines for the accommoda, 
 tion of defendant's private way, which he crossed under claim of 
 right ; that subsequently, upon the change of line, the company 
 agreed to maintain such crossing over the new line, — is sufficient 
 to sustain a finding that defendant had, at the point where said 
 way crossed the new line, a right of way which had been pre- 
 viously granted or reserved.* It is not necessary that the claim 
 of right shall be expressly made or that the acquiescence be de- 
 clared. If the adverse user is so open and notorious that the owner 
 of the land ought to have known it, his acquiescence will be pre- 
 sumed. But the user must be adverse and acquiesced in.' The 
 right acquired by prescription is only commensurate to the right 
 enjoyed ; the extent of the enjoyment measures the extent of the 
 right." Evidence that for forty-seven years defendant had exer- 
 cised the right of crossing the railroad company's line at a certain 
 spot without objection, but for thirty-seven years had crossed only 
 on foot, justifies the finding that the right of way, so far as cross- 
 ing on foot was concerned, had been acquired by prescription. 
 But a right of way across a railroad acquired by prescription must 
 be exercised subject to the superior right of the company to run 
 its trains as it may determine to be proper for the general business 
 of its road.'' 
 
 A railroad company should have such sole and exclusive 
 control of the lands within the lines of its road as to enable 
 it so to keep it as to exclude all possibility of any accident occur- 
 
 ^Long V. Oill, 80 Ala. 408. 
 
 ^Rowell V, Doggett, 143 Mass. 483, 3 New Eng. Rep 756. 
 
 ^Turner v. FitcMurg R. Co. 145 Mass. 433, 5 New Eng. Rep. 423. 
 
 *FitcMurg R. Co. v. Frost, 147 Mass. 118, 6 New Eng. Rep. 374. 
 
 ^Deerfield v. Connecticut River R. Co. 144 Mass. 325, 4 New Eng. Rep. 189. 
 
 ^Boynton v. Longley, 19 Nev. 69. 
 
 "* Turner v. Michburg R. Co. 145 Mass. 433, 5 New Eng. Rep. 423.
 
 2i0 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 ring from any outside interference with such possession. As a 
 matter of law, the raih'oad company has the paramount right to 
 the land, and the land owner must yield to the superior claim se- 
 cured by the condemnation proceedings ; and he cannot, in any 
 mode or for any purpose, interfere with the use of the property 
 so taken for railroad purposes." If the right to remove the herb- 
 age be conceded, adjoining land owners would be found at the 
 proper season within the lines of the road with their hired men, 
 tools and perhaps teams, for the purpose of taking off the herbage, 
 and the detriment to the railroad company and the danger to the 
 trains and passengers would be increased a thousand fold. The 
 men employed by the land owners would be likely to be careless, 
 both in respect of being on the track in person and temporarily 
 laying their tools thereon, from which accidents might reasonably 
 be expected to occur ; to avoid which a constant and additional 
 degree of watchfulness would be required by the engineers having 
 trains in charge, and under the best management by the railroad 
 company accidents might reasonably be expected to occur from 
 such causes. In the removal of such causes, railroad companies 
 and the traveling public are greatly interested. Everything which 
 tends to increase the danger of travel upon railroads, public policy 
 requires should be prevented if possible. The propelling power 
 used by the railroad ; its numerous freight and passenger trains 
 driven at the high rate of speed demanded by the public ; its abso- 
 lute responsibility for damage to insurable property, real and per- 
 sonal, contiguous to its lines, caused by fire communicated by its 
 locomotives or so communicated to materials growing and nat- 
 urally between its road and property not contiguous and extending 
 thereto;" its common-law and numerous statute liabilities, — all re- 
 quire that it shall have, as means to meet these responsibilities, the 
 fullest opportunity which the freest use, occupation and control of 
 the land within its lines can afford, without the intervention of 
 any acts on the part of the land owner which may tend to endan- 
 ger its trains or otherwise embarrass its use of the easement for 
 the purpose for which its charter was granted. To this end it 
 must have practically the exclusive control and possession of the 
 
 ^Kansas Cent. R Co. v. Allen, 22 Kan. 285. 
 ^Pratt V. Atlantic & St. L. R. Co. 42 Me. 579.
 
 Chap. XII.] NEGLIGENT FAILURE TO DISCOVER EASEMENT. 24:1 
 
 land within the lines of its location and the authority to remove 
 therefrom all things growing thereon, the removal of which it 
 may deem necessarily conducive to the safe management of its 
 road.' 
 
 Section- 'it^.—J^egUgence as Affecting Easements. 
 
 a. JVegligent Failure to Discover Continuous or 
 Apparent Easement. 
 
 The doctrine that a continuous easement, as a drain or other 
 artificial watercourse, passes by implication, rests to some extent 
 on the presumed knowledge of the purchaser of the servient estate 
 of the existing easement, or on the fact of his actual negligence in 
 not making the necessary inspection of the premises, and thereby 
 informing himself of a burden which could be known by th§ use 
 of due diligence.* Negligence is in part the foundation of the li- 
 ability, as the fact that due diligence would not disclose the exist- 
 ence of a way, which, being a right enjoyed at intervals, leaves in 
 the interim no visible sign of its existence, prevents that easement 
 from passing under the same grant which conveys the continuous 
 •easement,^ 
 
 Where a purchaser has knowledge of any fact sufficient 
 to put him on inquiry as to the existence of some right or 
 title in conflict with that he is about to purchase, he is presumed 
 either to have made the inquiry and ascertained the extent of 
 
 ^Jacknon v. Rutland & B. R. Co. 25 Vt. 150; Connecticut & P. R. R. Co. v. 
 
 Eolton, 33 Vt. 43; Hayden v. Skillings, 78 Me. 413, 3 New Eng. Rep. 174; 
 
 Locks iS; Canals v. Nashua & L. R. Co. 104 Mass. 11, and cases cited; 
 
 Hazen v. Boston & M. R. Co. 2 Gray, 577, 580; Brainardv. Clapp, 10 
 
 Cush. 10; Kansas Cent. R. Co. v. Allen, 22 Kan. 285, 31 Am. Rep. 190; 
 
 Pittsburg, C. & St. L. B. Co. v. Jones, 86 Ind. 496; Salmon v. Delaware, 
 
 L. & W. R. Co. 38 N. J. L. 5, 20 Am. Rep. 356; Kellogg v. Chicago <t. N. 
 
 W. R. Co. 26 Wis. 227, 7 Am. Rep. 71. 
 *Memmert v. McKeen, 112 Pa. 315, 3 Cent. Rep. 383; Lampman v. Milks, 21 
 
 N. Y. 507; Curtiss v. Ayrault, 47 N. Y. 79; Rogers v. Sinsheiiner, 50 N. 
 
 Y. 646; De Luze\. Bradbury, 25 N. J. Eq. 70. 8ee Seymour v, Lewis, 13 
 
 N. J. Eq. 439. 
 ^Kelly V. Dunning, 43 N. J. Eq. 63, 8 Cent. Rep. 600; Denton v. Leddell, 23 
 
 N. J. Eq. 64; Brakely v. Sharp, 9 N. J. Eq. 9, 10 N. J. Eq. 206; Seymour 
 
 V. LewiH, 14 N. J. Eq. 439; Fetters v. Humphreys, 18 N. J. Eq. 260. on 
 
 appeal, 19 N. J. Eq. 471; De Lvze v. Bradbury, 25 N. J. Eq. 70; Sfuy- 
 
 vesant v. Woodruff, 21 N. J. L. 133; Central R. Co. v. Valentine. 29 N. J. 
 
 L. 561; Pyerv. Carter, 1 Hurl. & N. 916; Ewart v. Cochrane,! 3 m. N. S. 
 
 925; Thayer v. Payae, 2 Cush. 333; Plieysey v. Vicary, 16 Mees. «& W. 484. 
 
 16
 
 242 IMPOSED DUTIES, PERSONAL. [Part 1. 
 
 such prior right, or to have been guilty of a degree of negligence 
 equally fatal to his claim to be considered a bona fide purchaser.' 
 A purchaser is presumed to know what the property is which he 
 buys, unless deception is practiced upon him,^ and if the way be 
 apparent and plainly defined, it will pass by grant as it exists, as a 
 continuous easement would. Where, at the time of a grant of a 
 right of way, it was a defined way, about twenty-five feet in width^ 
 bounded on each side by a stone wall, with bar-ways at intervals- 
 opening into adjacent fields, extending from the highway to a 
 point near a river — which was on the west side, the boundary of 
 the whole tract — the grant of the use of the lane was the grant of 
 the right of way in land as thus located and defined. To consider 
 it as anything else would be to do injustice to the grantee, who, 
 having found the way such as that described in the deed, was able 
 to determine from its width and direction when he closed the pur- 
 chase whether it was sufiicient for his purpose. It was granted 
 for the convenient occupation of the premises conveyed, and the 
 grantee is entitled to all the convenience which, as it then existed^ 
 it could afford in the management of the farm on which it bounded. 
 The erection, therefore, of a fence across the lane by the grantor, 
 although provided with a gate which could readily be opened and 
 closed, even if the gate when open affords sufficient space for the 
 passage of teams and cattle, is such an obstruction to the conven- 
 ient use of the property as will constitute an invasion of the 
 grantee's right, and which he will be authorized to peaceably re- 
 move;' for one having a right of way appurtenant to his land 
 may remove unlawful obstructions, and the intention on his part 
 to make an unjustifiable use of the way at a future time will not 
 make him a present trespasser, nor will his claim that he holds the 
 way in another right have this effect.* 
 
 i Williamson v. Brown, 15 N. Y. 354, 362; Reed v. Gannon, 50 N. Y. 845, 
 
 349, 350; Pendleton v. Fan, 2 Paige, 202; Hawley v. Cramer, 4 Cow. 717; 
 
 Baker v. Bliss, 39 N. Y. 70; Brown v. Volkening, 64 N. Y. 76; Kellogg v. 
 
 Smith, 26 N. Y. 18; Sigourney v. Munn, 7 Conn. 324; Youngs v. Wilson, 
 
 27 N. Y. 351; Montefiore v. Browne, 7 H. L. Cas. 241. 
 »Abb. Tr. Ev. 520, Covenants for Title, citing Spoor v. Oreen, L. R. 9 Exch. 
 
 99, 8 Moak, Eng. Rep. 540; Rawle, Cov. Tit. 118, and note. 
 ^Dickinson v. Whiting, 141 Mass. 414, 2 New Eng. Rep. 356. See Salisbury 
 
 V. Andrews, 19 Pick. 250; Tudor Ice Co. v. Cunningham, 8 Allen, 139; 
 
 Welch V. Wilcox, 101 Mass. 162; Tucker v. Hoioard, 122 Mass. 529; Nash 
 
 V. Mw England Mut. L. Ins. Co. 127 Mass. 91. 
 *Rayes v. De Viio, 141 Mass. 233. 1 New Eng. Rep. 749.
 
 Chap. XII.] NEGLIGENCE, ETC., OF EASEMENT IN A WAY. 243 
 
 In Bakemaii v. Talbot, 31 N. Y. 366,Jud</e Denio says: "The 
 doctrine that the faciHties for passage, where a private right of way 
 exists, are to be regidated by the nature of the case and the cir- 
 cumstances of the time and place, is very well settled by author- 
 ity.' The extent of the privilege created by the dedication of a 
 private right of passage depends upon the circumstances, and 
 raises a question for the determination of the jury. If, therefore? 
 in the present case I felt less conlidence in the conclusion I have 
 stated than I do, I should hold the question had been settled by 
 the judge sitting in the place of a jury in a manner that we could 
 not disturb." ' The owner of an easement upon land has no right, 
 by virtue of such ownership, of entry, nor has he any right to pass 
 over the land. He has a right to enter on the land to place and 
 keep the easement in repair,' but, aside from this and analogous 
 purposes, he has no such right.* But the grant of a right of pas- 
 ture carries the right of way to and from the pasture. So does, 
 the right of draAving water; and the privilege of fishing or hunt- 
 ing gives the right of access and egress to and from the estate in 
 which it is enjoyed.' 
 
 Where one purchases one of a number of platted lots with refer- 
 ence to the plat, which shows the street unobstructed, although at 
 the time of the purchase it was closed by a gate, the purchaser is not. 
 chargeable with negligence in not discovering this fact, and he is en- 
 titled to have the street kept unobstructed; and where he removes the 
 gate and the purchaser of lots adjoining restores it, he is entitled to 
 have an injunction restraining the other from maintaining the gate." 
 
 b. JVegligenee in the Use or in Interrupting the- 
 Exercise of an Easement. 
 
 1. In a Way. 
 
 An owner of land is not shorn of any of his riglits by merely 
 permitting as a favor another to pass over his lands. His neo-li- 
 
 'Citing Hemphill v.fiostora, 8Cush.l95; Cowlings. Bkjgimon,^ Mees. «&"W. 245. 
 ''See Huson v. Young, 4 Lans. 63. 
 
 ^Brown v. Stone, 10 Gray, 61; Atkins v. Bordnian, 2 Met. 407; Gerrard v 
 Cooke, 3 Bos. & P. N. R. 109. 
 
 *Fiizell V. Leiiky, 72 Cal. 477; Bakeman v. Talbot, 31 N. Y. 371. 
 
 ^Alexander v. Tolleston Club, 110 111. 65. 
 
 ^Chapin v. Brown, 15 R. I. 579, 4 New Eng. Rep. 918..
 
 244 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 gence in asserting his right to exchide will not estop him. In 
 order to estabhsh a prescriptive right, something more than mere 
 permissive user or passive negligence must be shown.' The use 
 of land for the purpose of passing over it is not inconsistent with 
 the right of ownership, and where there is no inconsistency be- 
 tween the use and the ownership, there can be no prescriptive 
 right. It is not necessary to establish a prescriptive easement that 
 there should be color of title, but it is necessary that the use should 
 be under an assertion of right, and not simply a user under a naked 
 license or negligent acquiescence.^ 
 
 The owner of the soil, having a license from a person having a 
 right of way over the land, to build an arch over the way, cannot 
 shelter himself by such license from injury caused by his negligent 
 obstruction of the way in the progress of the building, or for his 
 negligence in completing the same within a reasonable time.' 
 Where the owner of land in Boston abutting on a private passage- 
 way, marked at each end "private," the soil of one half of which 
 he owns subject to the right of way, constructs a sidewalk, leaving 
 insufficient room for the opposite owner to turn his team, the latter 
 is entitled to a decree ordering its removal, and compensating him 
 in damages for the injury which he has sustained in consequence." 
 Under covenants in deeds that land is to be used for no other pur- 
 pose than an alley, and that such alley is to be kept for the mutual 
 benefit of the owners of the property on each side, neither party 
 has a right to obstruct the alley by building a wooden frame en- 
 tirely across it, and putting up hooks and slides of metal on which 
 to hang and slide fresh meat.* On the discontinuance of a por- 
 tion of a highway to which a grantee of lands not bordering there- 
 on has a right of way of necessity, and.the reversion of the lands 
 to the grantor, the grantee does not retain the right to pass over 
 the discontinued portion to reach a new highway, his remedy be- 
 ing a right to damages for being cut off from his only means of 
 reaching his land.' 
 
 'Goddard, Easetn. (Bennett's ed.) 134. 
 ^Parish v. Gaspare, 109 Ind. 586, 7 West. Rep. 369. 
 ^CmMng v. Adams, 18 Pick. 110. 
 *Nute V. Boston Co-op. Bldg. Co. 149 Mass. 465. 
 ^Sxoift V. Coker, 83 Ga. 789. 
 
 '^Morse v. Benson (Mass. May 9, 1890) 24 N. E. Rep. 675; Levet v. Lapeyrol- 
 lerie, 39 La. Ann. 210; Johnson v. Knapp, 150 Mass. 267.
 
 Chap. XII.] NEGLIGENCE, ETC., OF EASEMENT IN A WAY. 245 
 
 The owner of land servient to a right of way is not negligent in 
 that he does not maintain fences along the wa}' of a tenant of the 
 owner of the dominant estate, unless he is bound to do so by pre- 
 scription, custom or express contract. The owner of the dominant 
 estate must keep his cattle upon his own land and maintain a gate 
 at his end of the farm road,' In the absence of a custom to the 
 contrary being shown, it may be assumed that one receiving the 
 right to pass through a neighbor's yard receives it under the same 
 conditions as to entrance to the yard that owners generally impose 
 upon themselves. The reservation in the deed of a right to pass 
 through a yard does not imply a right to remove gates from the 
 entrance,* "A mere easement for travel and private road pur- 
 poses, but no other way over the estate whatever, or title or inter- 
 est of any kind whatever," does not give to the grantee the right 
 to an open way ; but the owner may erect gates at each end there- 
 of and require grantee to close and fasten them after passing 
 through.^ Evidence that a passageway has been used in a certain 
 mode, from the time of making the deed until the time of an al- 
 leged trespass, without any objection being made, is admissible to 
 show what was intended by the reservation,* What is a reason- 
 able use of a way, where the purposes are not defined in the grant, 
 is a question of fact to be determined upon the evidence,^ The 
 declarations of a deceased former owner of land, made during his 
 ownership, tending to prove the existence of a right of way over 
 it, are competent evidence against its present owner.* 
 
 In Iowa, under the provisions of the statute, no right of foot- way, 
 except W'here claimed in connection with the right to pass with car- 
 riages, can be acquired by prescription or adverse use for any length 
 of time.'' The owner of the fee in an alley-way over which is a right 
 of way may erect a building over such way if in so doing he does 
 
 ^Brill V. Brill, 108 N. Y. 511, 11 Cent. Rep. 305; Maxwell v. McAtee. 9 B. 
 
 Mod. 20; Bean v. Coleman, 44 N. H. 589; Margrafv. Muir, 57 N.Y. 157. 
 "^Short V. Devine, 146 Mass. 119, 5 New 'Ens.. Rep. 593. See Ilmon v. Young, 
 
 ^ Lans. 63; Maxwell v. McAiee, 9 B. Mo i. 20; Garland v. Furber, 47 N. 
 
 H. 301; Baker v. FrickA^ Md. 337; Amondson v. Severson, 37 Iowa, 603; 
 
 Goddard, Easem. 330; W/ialcy v. Jarreit, 69 Wis. 613. 
 ^Whaley v. Jarrett, 69 Wis. 613. 
 
 * s ^Eo7cell V. Doggett, 143 Mass. 483, 3 New Eng. Rep. 756. 
 ' Willard v. Calhoun, 70 Iowa, 650.
 
 246 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 not interfere -with the right of way.' The various cases which 
 have arisen as to the right of the owner of land subject to a right 
 of way, to build or project structures over the way, have all been 
 decided upon the same general principles. The difference in the 
 results arises from the application of these principles to a difiEerence 
 in the grants by which the way is created, and in other circum- 
 stances of the cases. These general principles are that a man who 
 owns land subject to an easement, has the right to use his land in 
 any way which is coincident with the easement, but has no 
 right to use it in a way which is inconsistent with the easement ; 
 and that the extent of the easement claimed must be determined 
 by the true construction of the grant or reservation or use by which 
 it is created, aided by any circumstances surrounding the estate and 
 the parties which have any legitimate tendency to show the inten- 
 tions of the parties. 
 
 In the leading case of Atkins v. Bordman, 2 Met. 457, it was 
 held that a passageway, about five feet in width, running from 
 Washington Street to rear land owned by the plaintiff, might be 
 built over by the owner of the front land. The court held that 
 by the true construction of the grant under which the plaintiff 
 claimed, he acquired merely the right of "a suitable and conven- 
 ient foot-way to and from his house, of suitable height and dimen- 
 sions to carry in and out furniture, provisions and necessaries for 
 family use, and to use for that purpose wheelbarrows, hand-sleds 
 and such small vehicles as one commonly used for that purpose, in 
 passing to and from the street to a dwelling in the rear, through 
 a foot-passage, in a closely built and thickly settled town." It was 
 therefore adjudged that the owner of the fee might build over 
 the way in a manner which did not render it unlit for these pur- 
 poses. This decision was followed in Gerrlsh v. Shattuch, 132 
 Mass. 235, in which the reservation to the plaintiff was of " a pas- 
 sageway four feet wide in, through and over said premises, from 
 said Prescott Street to my tenement on the westerly side thereof." 
 It was held that this reserved a foot-way for passing and repassing, 
 with such incidental rights as are necessary to its enjoyment, and 
 that the owner of the servient premises might build over it in such 
 manner as not to interfere with these purposes. 
 
 ^Sutton V. Oroll, 43 N. J. Eq. 213, 4 Cent. Rep. 251; Oerrish v. Shattuck, 
 133 Mass. 235. See AtMna v. Bordman, 2 Met. 457.
 
 Chap. XIL] NEGLIGENCE, ETC., OF EASEMENT IN A WAT. 247 
 
 If one negligently obstruct or interfere with the easement of 
 the public in a highway, although it be done in the careless exer- 
 cise of a power conferred, he will be liable for the consequences 
 of such negligence.' If the obstruction is unauthorized the lia- 
 bility will exist without proof of negligence.* One is liable for 
 blocking the sidewalk unreasonably with goods or keeping teams 
 continuously in front of liis premises engaged in loading or un- 
 loading goods ; and the fact that the same is necessary in the course 
 of his business is no excuse ; it is his duty to carry on his trade 
 where he will produce no serious annoyance to the people, as pub- 
 lic convenience and necessity are paramount to the ends of trade 
 or individual necessity,' The public are entitled to an unob- 
 structed passage upon the streets, including the sidewalks of the 
 city.* The primary purpose of streets is use by the public for 
 travel and transportation, and the general rule is that any obstruc- 
 tion of a street or encroachment thereon which interferes with 
 such use is a public nuisance. But there are exceptions to the 
 general rule, born of necessity and justified by public convenience. 
 Merely standing still on a sidewalk and refusing to move at the 
 
 ^North Vernon v. Voegler, 103 Ind. 314, 1 West. Rep. 566; Renwick v. Mor- 
 ris, 3 Hill, 621, 7 Hill, 575. 
 
 *EicharcUon v. Boston, 60 U. S. 19 How. 263, 15 L. ed. 639; Vicksburg <fe M. 
 R. Co. V. Alexander, 62 Miss. 496; Hussner v. Brooklyn City R. Co. 114 
 N. Y. 483; PilUbury v. Brown, 82 Me. 450; Washington Natural Gas Co. 
 V. Wilkinson (Pa. Nov. 9, 1885) 2 Atl. Rep. 338; Lippincott v. Lasher, 44 
 N. J. Eq. 120, 12 Cent. Rep. 238; Jones v. Housatonic R. Co. 107 Mass. 
 261; Ellis v. Academy of Music, 120 Pa. 608; Robinson v. New York & E. 
 R. Co. 27 Barb. 512; Keystone Bridge Co. v. Summers. 13 W. Va. 485; 
 Carlin v. Driscoll, 50 N. J. L. 28, 10 Cent. Rep. 178; Com. v. Nashua & 
 L. R. Co. 2 Gray, 54; State v. Chicago, M. & St. P. R. Co. 77 Iowa, 442, 
 4 L. R. A. 298; Com. v. Old Colony & F. R. Co. 14 Gray, 93; Weathered 
 V. Bray, 7 Ind. 706; Cam. v. Erie & N. E. R. Co. 27 Pa. 339; Silvers v. 
 Nerdlinger, 30 Ind. 53; Hart v. Albany, 9 Wend. 571; Baltimore v. Mar- 
 riott, 9 Md. 160; Rex v. Medley, 6 Car. & P. 392; Dygert v. Schenck, 23 
 Wend. 446; Barnes Y.Ward, 9 C. B. 392. 
 
 *Cohenv. New York, 113 N. Y. 536; Com. v. Passmore, 1 Serg. & R. 219; 
 Rex V. Russell, 6 East, 427; Rex v. Jo?ies, 3 Camp. 230; Hart v. Albany, 9 
 Wend. 571; People v. Cunningham, 1 Denio, 524; Knox v. New York, 54 
 Barb. 405, 38 How. Pr. 67; Doenner v. Tynan, 38 How. Pr. 176; People 
 V. Kerr, 27 N. Y. 188; Moore v. Jackson, 2 Abb. N. C. 211; Greene v. 
 New York C. & U. R. R. Co. 12 Abb. N. C. 124; TattU v. Brush Electric 
 & lU. Co. 50 N. Y. Super. Ct. 464; Bliss v. Johnson, 94 N. Y. 235; Hal- 
 lock V. Baranski, Daily Reg. Aug. 9, 1834; Tiffany v. U. S. Illuminating 
 Co. Daily Reg. April 9, 1884; Davis v. New York, 14 N. Y. 506; Clifford 
 V. Dam, 81 N. Y. 56. 
 
 •*See Rex v. Russell, 6 East, 427; Wood, Nuisances. § 259. See also People, 
 Bentley, v. New York, 18 Abb. N. C. 123; Elias v. Sutherland, 18 Abb. N. 
 C. 126.
 
 248 IMPOSED DUTIES. PEKSONAL. [Part I. 
 
 command of a policeman does not make one guilty of a nui- 
 sance.' An abutting owner engaged in building may temporarily 
 encroach upon the street by the deposit of building materials. 
 A tradesman may convey goods in the street to or from his 
 adjoining store. A coach or omnibus may stop in the street 
 to take up or set down passengers, and the use of a street 
 for public travel may be temporarily interfered with in a va- 
 riety of other ways, as by a street railway," without the cre- 
 ation of what in the law is deemed to be a nuisance; but all 
 such interruptions and obstructions of streets must be justified by 
 necessity. But it is not sufficient that the obstructions are neces- 
 sary with reference to the business of him who creates and main- 
 tains them ; they must also be reasonable with reference to the 
 rights of the public, who have interests in the streets which may not 
 be sacrificed or disregarded. Whether an obstruction in the street 
 is necessary and reasonable must generally be a question of fact to 
 be determined upon the evidence relating thereto.' A reference 
 to a few cases will show what courts have said upon this subject. 
 In Rex V. Hussell, 6 East, 427, where the defendant, a wagoner, 
 was indicted for occupying one side of a public street before his 
 warehouse for loading and unloading his wagons, the court said : 
 " It should be fully understood that the defendant could not 
 legally carry on any part of his business in the public street to the 
 annoyance of the public ; that the primary object of the street was 
 for the free passage of the public, and anything which impeded 
 that free passage without necessity was a nuisance; that if the nat- 
 ure of the defendant's business were such as to require the load- 
 ing and unloading of many more of his wagons than could con- 
 veniently be contained within his own private premises, he must 
 either enlarge his premises or remove his business to some more 
 convenient spot." 
 
 ^StatcY. Hunter, 106 N. C. 796, 8 L. R. A. 529. 
 
 ^Atty-Oen. v. Metropolitan R. Co. 125 Mass. 515, 28 Am. Rep. 264; Savan- 
 nah & T. R. Co. V. Savannah, 45 Ga. 602 ; Texas & P. R. Co. v. Rosedale 
 S. R. Co. 64 Tex. 80; Eichels v. Evansville St. R. Co. 78 Ind. 261; Carson- 
 V. Central R. Co. 35 Cal. 325; Elliott v. Fair Haven & W. R. Co. 32 Conn. 
 579; Hobart v. Milwaukee City R. Co. 27 Wis. 194, 9 Am. Rep. 461; HissY. 
 Baltimore & H Pass. R. Co. 53 Md. 242, 36 Am. Rep. 371; Cincinnati St. 
 R. Co. V. Cumminsville, 14 Ohio St. 523; Jersey City & B. B. Co. v. Jersej/ 
 City & H. Horse R. Co. 20 N. J. Eq. 61. 
 
 *Callanan v. Qilman, 107 N. Y. 360.
 
 Chap. XII.] NEGLIGENCE, ETC., OF EASEMENT IN A WAY. 240 
 
 In Rex V. Gross, 8 Camp. 224, the defendant was indicted for 
 allowing liis coaches to remain an unreasonable time in a public 
 street, and tlie court said : " Every unauthorized obstruction of a 
 highway, to the annoyance of the King's subjects, is a nuisance. 
 The King's highway is not to be used as a stable yard. ... A 
 stage-coach may set down or take up passengers in the street, tliis 
 being necessary for public convenience; but it must be done in a 
 reasonable time, and private premises must be provided for the 
 coach to stand while waiting between the end of one journey and 
 the commencement of another." 
 
 In Rex V. Jones, 3 Camp. 230, the defendant, a lumber mer- 
 chant in London, was indicted for the obstruction of a part of a 
 street in the hewing and sawing of logs, and the court said : " If 
 an unreasonable time is occupied in delivering beer from a brew- 
 er's dray into the cellar of a publican, this is certainly a nuisance. 
 A cart or wagon may be unloaded at a gate-way, but this must be 
 done with promptness. So as to the repairing of a house, the 
 public must submit to the inconvenience occasioned necessarily in 
 repairing the house ; but if this inconvenience should be prolonged 
 for an unreasonable time the public have a right to complain, and 
 the party may be indicted for a nuisance. The rule of law upon 
 this subject is much neglected, and great advantages would arise 
 from a strict, steady application of it. I cannot bring myself to 
 doubt the guilt of this defendant. He is not to eke out the 
 inconvenience of his own premises by taking in the public 
 highway with his lumber-yard ; and if the street be too narrow 
 he must move to a more convenient place for carrying on his 
 business." 
 
 In Commonwealth v. Passmore, 1 Serg. & R. 217, the defend- 
 ant, an auctioneer, was indicted for a nuisance in placing goods 
 on the foot-way and carriage-way of one of the public streets of 
 the city and suffering them to remain for the pui-pose of being 
 sold there, so as to render the passage less convenient, although 
 not entirely to obstruct it, and tlie court said : "It is true neces- 
 sity justifies actions which would otherwise be nuisances. It is 
 true also that this necessity need not be absolute ; it is enough if 
 it be reasonable. No man has a right to throw wood or stones
 
 ■250 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 into the street at his pleasure.* But, inasmuch as fuel is neces- 
 sary, a man may throw wood into the street for the purpose of 
 having it carried to his house, and it may lie there a reasonable 
 time. So, because building is necessary, stones, bricks, lime, sand 
 and other materials may be placed in the street, provided it be 
 •done in the most convenient manner. On the same principle a 
 merchant may have his goods placed in the street for the purpose 
 of removing them to his store in a reasonable time. But he has 
 no right to keep them in the street for the purpose of selling them 
 there, because there is no necessity for it. ... I can easily per- 
 ceive that it is for the convenience and the interest of an auc- 
 tioneer to place his goods in the street, because it saves the expense 
 of storage. But there is no more necessity in his case than in that 
 of a private merchant. It is equally in the power of the auctioneer 
 and the merchant to procure warehouses and places of deposit, in 
 proportion to the extent of their business." 
 
 In People v. Cunninghanv, 1 Denio, 524, the defendants were 
 indicted for obstructing one of the streets in the City of Brook- 
 lyn, and the court said : " The fact that the defendants' business 
 was lawful does not afford them a justification in annoying the 
 public in transacting it ; it gives them no right to occupy the pub- 
 lic highway so as to impede the free passage of it by the citizens 
 generally. The obstruction complained of is not of the tempo- 
 rary character which may be excused within the necessary quali- 
 fications referred to in the cases cited, but results from a system- 
 atic course of carrying on the defendants' business. It is said 
 that this business cannot be carried on in any other manner at that 
 place so advantageously either to individuals or the public. The 
 answer to this is to be found in the observations of the court in 
 BusseWs Case, above cited : ' They must either enlarge their prem- 
 ises or remove their business to some more convenient spot.' Pri- 
 vate interests must be made subservient to the general interest of 
 the community." 
 
 In Welsh v. Wilson, 101 E". Y. 254, 2 Cent. Rep. 749, a case 
 where the defendant obstructed a sidewalk in the City of New 
 
 ^Clinton v. Howard, 43 Conn. 294; Dygerl v. Schenck, 23 Wend. 446; Bliss v. 
 Schaub, 48 Barb. 339; Mould v. Williams, 5 C. B. 469; Burgess v. Gray, 1 
 C B 578; Linsey v. Bushnell, 15 Cona. 225; Harlow v. Humiston, 6 Cow. 
 189.
 
 'Chap. XII.] NEGLIGENCE, ETC., OF EASEMENT IN A WAY. 251 
 
 York with skids a few minutes while he was engaged in removing 
 two large cases of merchandise from his store to a truck, in conse- 
 quence of M'hich the plaintiff claimed to have been injured while 
 passing through the street, it was said : " The defendant had the 
 right to place the skids across the sidewalk temporarily for the pur- 
 pose of removing the cases of merchandise. Everyone doing busi- 
 ness along a street in a populous city must have such a right, to be 
 •exercised in a reasonable manner, so as not to unnecessarily incum- 
 ber and obstruct the sidewalk." 
 
 In Mathews v. Kelsey, 5S Me. 56, the court said : "As an inci- 
 dent to this right of transit, the public have a right to load and 
 Tinload such vehicles (in the street or from the street) as they find 
 it convenient to use. But in this respect each individual is re- 
 strained by the rights of others. He must do his work in such 
 careful and prudent manner as not to interfere unreasonably with 
 the convenience of others." So obstruction of the easement un- 
 lawfully by telegraph poles or wires negligently strung, or by an 
 electric or steam railway, is a nuisance ;' and such obstructions 
 Jiave often been held to be nuisances, even when authorized." 
 But there are many cases which hold that the use is the true test, 
 and permit the employment of steam or electricity to move street 
 cars, and the placing of poles in the street.^ The omission to 
 •station flag-sentinels, or to give some other proper wai-ning, 
 
 ^Beg. V. United Kingdom E. Teleg. Co. 3 Fost. & F. 73; Pennsylvania R. Co. 
 
 V. Minh, 115 Pa. 514, 4 Cent. Rep. 276; Dickey v. Maine Teleg. Co. 46 
 
 Me. 483; Thomas y. Western Union Teleg. Co. 100 Mass. 156. 
 ^Stanley v. Davenport, 54 Iowa, 463; Ead End St. R. Co. v. Doyle, 88 Tenn. 
 
 747; Western Union Teleg. Co. v. Williams (Va. March 27, 1890) 8 L. R. A. 
 
 429; Jersey City & B. R. Co. v. Jersey City & H. Horse R. Co. 20 N. J. Eq. 
 
 61; Reichert y. St. Louis d- S. F. R. Co. 51 Ark. 491, 5 L. R. A. 183; 
 
 Glassner v, Anheuser-Busch Brew. Asso. 100 Mo. 508; Willis v. Erie Teleg. 
 
 <& Teleph. Co. 37 Minn. 347 (divided court). See also cases cited in notes, 
 
 ante, p. 97. 
 *Mount Adams & E. P. I. R. Co. v. Winslow, 3 Ohio Circuit Ct. Rep. 425; 
 
 Pelton V. East Cleveland R. Co. (Ct. Com. Pleas Cuyahoga Co. Ohio) 22 
 
 Ohio L. J. 67, affirmed on appeal to circuit court, 4 Harvard Law Rev. 
 
 258; Taqqart v. Newport St. R. Co. 16 R. I. , 7 L. R. A. 205; Balseyv. 
 
 Rapid Transit R. Co. 47 N. J. Eq. , decided Dec. 6, 1890; Brirjgs v. 
 
 Lewiston & A. H. R. Co. 79 Me. 363; Williams v. City Electric St. R. Co. 
 
 41 Fed. Rep. 556; JVetcellv. Minneapolis, L. & M. R. Co. 35 Minn. 112, 59 
 
 Am. Rep. 303; Detroit City R. Co. v. Mills (Circuit Ct. Wayne Co. Mich. 
 
 1890) 4 Harvard Law Rev. 260: Louisville Bagging Mfg. Co. v. Central P. 
 
 B. Co. (Louisville Law and Equity Ct. June 30, 1890) 4 Harvard Law 
 
 Rev. 260; T^onergan v. Lafayette St. R. Co. (Lafayette Circuit Ct. lud. 
 
 July 9, 1890) 4 Harvard Law Rev. 260.
 
 252 IMPOSED DUTIES, PERSONAL. [Part L 
 
 while its employes are engaged in stringing wires over the 
 street for telegraph or telephone purposes, is an act of neg- 
 ligence, entitling one injured thereby to maintain an action, 
 against the corporation.' The right to lay railroad tracks in 
 a street carries with it the obligation to lay the tracks in a. 
 proper manner and keep them in repair, and if an injury occur 
 by neglect in either of these respects, the railroad company is 
 liable/ Where the defect is immediately connected with the 
 track and is plainly visible to the employes of the railroad, the 
 duty of remedying the defect is affirmative and absolute and na 
 notice is necessary.* It is their duty to know it. Where plain- 
 tiff was driving a pair of horses over the railroad track, which, 
 crossed a public street, when one of them stepped into a hole at 
 the crossing, and was thrown down and injured, the railroad was- 
 held liable.^ It is the duty of a railroad company to maintain 
 street or highway crossings, changed by it for its own purpose and 
 convenience, in a reasonably safe condition for passage.* It may 
 be that, even where a railroad company changes the face of a 
 highway for its own convenience, it is not bound to make it safer 
 for travelers upon it than its use for a railroad will permit, and 
 that one who walks upon it is bound to know that it is a railroad 
 track, and is not safer for use for passage than the object for which 
 it is devoted will allow; but there may still be a recovery where 
 the unsafe condition of the track is due to the negligence of the- 
 company, and the plaintiff, while using such care as a prudent and 
 careful person of adult age would use in making his way along a 
 track traversing the street, had his foot caught in the track, and 
 the railroad company was negligent in managing its train, and by 
 
 ^Western Union Teleg. Go. v. Et/ser, 91 U. S. 495, 23 L. ed. 377, note. 
 
 ^Fash V. Thi7-d Ave. B. Co. 1 Daly, 148; Cumberland Valley B. Co. v. Ettghes,. 
 11 Pa. 141. 
 
 ^Barton v. Syracuse, 36 N. Y. 58. 
 
 *Worsier v. Forty-Second St. & G. St. Ferry B. Co. 50 N. Y. 203. See Car- 
 penter V. Central Park, N. & E. R. Co. 11 Abb. N. S. 416; Fash v. Third 
 Ave. B. Co. 1 Daly, 150; Brooklyn v. Brooklyn City B. Co. 47 N. Y. 475; 
 McMahon v. Second Ave. B. Co. 75 N. Y. 231; Holmes v. Delaware, L. & 
 W. R. Co. 89 N. Y. 212. 
 
 ^Delzell V. Indianapolis & C. B. Co. 32 Ind. 45; Indianapolis <& St. L. B. Co. 
 V. Stout, 53 Ind. 143; Louisville, N. A. & C. B. Co. v. Smith,91 Ind. 119;, 
 South & North Alabama B. Co. v. McLendon, 63 Ala. 266; Kelly v. South- 
 ern Minn. B. Co. 28 Minn. 98; Oliver v. Northeastern B. Co. 9 Moak, Eng> 
 Rep. 350; 2 Wood, Ry. Law, 1382.
 
 Chap. XII.] NEGLIGENCE, ETC., OF EASEMENT IN LIGHT. 253 
 
 reason thereof the plaintiff M'as injnred.' Where plaintiff's sleigh 
 was upset by striking against a switch in a street, which projected 
 above the level of the street, the railroad was liable, whether the 
 neo-ligence was in placing the switch improperly or in failing to keep 
 it in proper order." So a railroad will be liable, for such imper- 
 fect condition of a street crossing, to its employe for an injury.' 
 
 2. In Light. 
 
 In the case of Schiooerer v. BoyUtoh Market Asso.^ 99 Mass. 
 285, it was clear that the passageway could not be built over, be- 
 cause the grant to the plaintiff expressly provided that it should 
 not be " subject to have any fence or building erected thereon," 
 and because the other parts of the deed, and the facts of the case, 
 showed that the intention of the parties was that it should be in the 
 nature of an open court or street. 
 
 In Brooks v. Reynolds^ 106 Mass. 31, the passageway was ex- 
 pressly declared to be " for light and air," and it was held that it 
 could not be covered in whole or in part. 
 
 The cases of Salishury v. Andreios, 128 Mass. 336, and Atty- 
 Gen. v. Williams, 140 Mass. 329, were decided upon the ground 
 that the terms of the grant and the surrounding circumstances 
 showed that the purpose was that the passageways in question 
 should be kept open and unobstructed, substantially as streets or 
 courts, not only for the purpose of passing and repassing, but also 
 for purposes such as streets are ordinarily used for, — for light, air 
 and pi'ospect. 
 
 In Burnham v. JSfevins, 144 Mass. 88, 3 New Eng. Eep. 792, 
 the grant was of " a right and privilege in common with me, my 
 heirs and assigns, in a 5-foot passageway, leading from the north- 
 easterly corner of said land to said Belknap Street." In the same 
 breath, the grantor reserved to himself " the right and privilege of 
 using as a passageway, in common with said grantees, their heirs 
 and assigns, a strip of land, five feet wide, across the northerly end 
 of said granted premises, the said passageway to be maintained 
 
 ^Louisville, N. A. & C. R. Co. v. Phillips, 112 Ind. 59, 11 West. Rep. 119. 
 , ^WooUy V. arand St. & N. R. Co. 83 N. Y. 121. 
 
 ^Snow V. Housatonic R. Co. 8 Allen, 441. See ante, p. 68 et seq.
 
 254 IMPOSED DUTIES, PERSONAL. [Part L. 
 
 and supported at tlie common expense of the several abutters."" 
 The passageway reserved was a continuation of the passageway 
 named in the grant to the plaintiff. The effect of the two clauses 
 was to provide for a passageway running from Belknap Street 
 (now Joy Street) in a westerly direction, for a distance of 96 feet, 
 across the rear of the two lots owned by the plaintiff and the 
 defendant. It was only five feet in width and had no outlet at the- 
 westerly end. It was too narrow to be used for horses and carriages, 
 and clearly was not designed for such use. It was not of the char- 
 acter of a street or court. The purpose seems to have been to 
 provide a narrow footway leading to the rear of the defendant's 
 and plaintiff's lots, and of the lot next westerly of the plaintiff's,, 
 and of the lot on the northerly side of the way, designed for pass- 
 ing and repassing on foot and for carrying in, in small vehicles,, 
 articles necessary for family use, and, generally, to be used as such 
 ways are ordinarily used in a large city. The grants to the plain- 
 tiff and to the other abutters contained no provision that the way was 
 to be kept open to the sky for light or air or prospect. One of 
 the other grantees, one Perkins, was permitted, without remon- 
 strance on the part of the common grantor, to erect a house with 
 twenty-two windows overlooking the passageway; and to the time 
 of suit no abutter on the passageway had objected to such windows. 
 The court said : " We cannot distinguish this case from the two 
 cases, above cited, of Athins v. Bordman^ 2 Met. 457, and Ger- 
 rish V. Shattuch, 132 Mass. 235, and are therefore of opinion that 
 the plaintiff has not shown a right to have the passageway open 
 and unobstructed from the ground upwards for its full width of 
 five feet. The provisions in subsequent deeds of the grantor, of 
 other lots abutting on the passageway, do not lead us to any other 
 conclusion ; and we are not able to see how the fact that Perkins 
 opened windows overlooking the way, in his house on the lot north 
 of it, has any material bearing on the case. He could not thereby 
 acquire an easement of light and air; the defendant and his pre- 
 decessors in title had no right to prevent his opening windows,, 
 and their silence cannot justly lead to the inference that the pas- 
 sageway was laid out for the purposes of light and air, and thus 
 enlarge the grant to the plaintiff." The extent of a grantee's right 
 (on other streets or passageways) beyond the limits of his land, will;
 
 Chap. XIT.] NEGLIGENCE, ETC., OF EASEMENT IN WATER. 255 
 
 depend upon the nature and character of the way and its connec- 
 tion with the public streets, as affording a convenient outlet from 
 his land, althou<>:h, when defined by a plan, it extends to the whole 
 M^ay as so defined.' 
 
 In Re 29th Street, 1 Hill, 189, the court says: "I do not say 
 that his dedication will extend to all his lands on the site of the 
 street, however remote from the lots sold ; but it will, I think, ex- 
 tend to all his land on the same block, or, in other words, to the 
 next cross street or avenue on each side of the lots sold." But the 
 exhibition of a passageway on a plan referred to in conveyances gives 
 no " easement or other interest " in the passageway to grantees of 
 land " remote from, not immediately connected with, the lot sold." ' 
 
 If one entitled to a window of defined limit, overlooking 
 an adjacent estate, through negligence or intent suffer it to be- 
 come enlarged, he does not thereby forfeit his right to the original 
 limited space, but the owner of the adjacent estate may close the 
 extended space.* But if in doing this the owner of the servient 
 estate negligently obstruct the original limited space, he will be- 
 come a tort-feasor and liable in damages.* Nor will a changed 
 use of a room from a hall to a parlor authorize the closing of the 
 window in the latter." But if the light be altered to the disad- 
 vantage of the servient estate, the owner of the latter may change 
 it.' So extending a wall and changing its form will destroy the 
 prescriptive right to a window.* 
 
 3. In Water Katurally and Artificially Flowing. 
 —Harvesting Ice. 
 
 One entitled to the use of water must proportion his care to the 
 known danger of injury to others from its escape. The pipes and 
 
 ^Langmaid v. Biggins, 129 Mass. 353, 358. See Fox v. Union Sugar Ref. 10» 
 
 Mass. 292, 297; Stetson v. Dow, 16 Gray. 873. 
 » Cited in Boston Water Co. v. Boston, 127 Mass. 374; Williams v. Water Co. 
 
 134 Mass. 406. 
 ^Coolidge v. Dexter, 129 Mass. 167, 169, note. 
 *Chandler v. Thompson, 3 Camp. 80. 
 ^Tapling v. Jones, 13 C. B. N. S. 876; ThomasY. Thomas, 2 Cromp. M. & R. 
 
 33, 40. 
 ^Luttrel's Case, 4 Coke, 87/1. 
 ■>6arritt v. Sharp, 3 Ad. & El. 325. 
 »Blanchard v. Bridges, 4 Ad. & El. 176; Hutchinson v. Copestdke, 9 C. B, 
 
 N. S. 863.
 
 256 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 resisting apparatus must correspond with the pressure to be sus- 
 tained.' The occupant of an upper floor in a building will be 
 liable for failure to exercise such dihgence, to one on a lower floor 
 suffering injury from the neglect.* So he will be liable for the 
 act of a servant or guest.^ But the fact that one of several per- 
 sons who liave a right of use in common is guilty of negligence 
 will not charge them with liability." A landlord may render 
 himself liable for permitting the use of water apparatus in a de- 
 fective condition, if he knew of the defect, or with the use of 
 reasonable diligence could have discovered it.* If he is guilty 
 of no neo-liffence in orisrinal construction or want of care in 
 preservation he is not liable.* He will be liable where he oc- 
 cupies part of the premises, to a tenant of his occupying anothei 
 part, where through negligence he permits floods to penetrate the 
 premises and injure the tenant's goods, although the tenant has no 
 covenant requiring the landlord to repair.'' 
 
 A party sufliering damage from the negligent or improper con- 
 struction of a railroad bridge over a stream of water crossing his 
 right of way may treat it as temporary, and sue for injury from 
 its continuance, instead of for the whole injury to the value of 
 his property.* But a notice that one's predecessor had obstructed 
 the flow of water along a natural bed does not charge the person 
 to whom it is given with knowledge that he is continuing a tres- 
 pass, where it does not come from one having any ownership in 
 or along the bed or watercourse which is the subject of notice.' 
 
 ^New Fork v. Bailey, 2 Denio, 438; Wendell v. Pratt, 12 Allen, 464; Robin- 
 son V. Black Diamond C. Co. 50 Cal. 460; Richardson v. Eier, 34 Cal. 63, 
 37 Cal. 263. 
 
 ^Stapenhorst v. American Mfg. Co. 15 Abb. Pr. N. S. 855; Moore v. Goedel, 
 34 N. Y. 527; White v. Montgomery, 58 Ga. 204; Weston v. Tailors of Pot- 
 terrow, 14 C. F. 1282. See Terry v. New York, 8 Bosw. 504. 
 
 ^Simonton v. Loring, 68 Me. 164; Killion v. Power, 51 Pa. 429; Robbins v. 
 Mount, 4 Robt. 553. 
 
 '^Moore v. Goedel, 34 N.Y. 527. See Ortmayer v. Johnson, 45 111. 469. 
 
 ^Warren v. Kauffman. 2 Phila. 259; Worthington v. Parker, 11 Daly, 545; 
 Bedell V. Long Island R. Co. 44 N. Y. 367-370; Wooden v. Austin, 51 
 Barb. 9. 
 
 ^Carstnirs v. Taylor, L. R. 6 Exch. 217; Everett v. Hydraulic Flume Tun- 
 nel Co. 23 Cal. 225; Fraler v. Sears Union Woier Co. 12 Cal. 555. 
 
 '^ Stapenhorst v. American Mfg. Co. 15 Abb. Pr. N. S. 355. 
 
 ^Chicago, B & Q. R. Co. v. Shaffer, 124 111. 112, 14 West. Rep. 139; Mc- 
 Connel v. Kibbe, 29 111. 483. 
 
 ^Schlag v. Jones, 181 Pa. 62.
 
 Chap. XII.] NEGLIGENCE, ETC., OF EASEMENT IN "WATER. 257 
 
 While authority given by charter, to " take, detain and use the 
 water" of a certain pond and streams tributary thereto, authorizes 
 a water supply company to detain the water in the pond, thus 
 flowing the lands of proprietors on the pond and streams above, 
 and lessening the natural flow below, yet such proprietors are en- 
 titled to a statutory remedy for the damages.' The same liability 
 exists where wells are drained." 
 
 Ownership of a strip of the shore of a pond gives no right to flsh 
 in the pond as against the owner of the land under the water.' The 
 owner of the bed of a stream, which can be used for boating only be- 
 cause the depth of the water is increased by a dam, has the right as 
 the riparian proprietor on a private stream to obstruct it by posts 
 and chains to prevent the use of boats thereon by the public." Nor 
 can a statute declaring a river to be a public highway, but without 
 making any provision for compensation to riparian owners who 
 may be damaged by the use of the stream for the purposes of 
 navigation, have the effect to make it a public highway, unless it 
 is navigable in point of fact.^ Rights in a stream cannot be 
 acquired by a non-riparian owner, except by grant or prescription 
 or estoppel ; and one removing obstructions from a stream, under 
 a license so to do, for the privilege of turning other waters into 
 it, and not for the right to use the natural flow of the water, 
 acquires thereby no holding adverse to a lower holder who has the 
 right to use the natural flow of the water.' 
 
 The grantor of a right to dig a ditch across his farm, and to 
 maintain it to secure a supply of water from a spring, is under no 
 duty to keep the ditch in repair or prevent his cattle from tramp- 
 ling in it while pasturing on the farm.' The right to use a 
 spring will not be held to include, for the purpose of drawing 
 water, the whole of a bog or peat-bed covering more than a quarter 
 
 Ungraham v. Camden & B. Water Co. 82 Me. 335 ; Schaefer v. Marthaler 34 
 Minn. 487. 
 
 '^Trmcbridge v. Brookline, 144 Mass. 189. 3 New Eng. Rep. 789; Allen v. Sad- 
 ler, 66 Miss. 221. But see Greenleafy. Francis, 18 Pick. 117; Chamnore 
 V. Richards, 7 H. L. Cas. 349; Wilson v. New Bedford, 108 Mass. 261. 
 
 ^Decker Y. Baylor, 133 Pa. 168. 
 
 ^Bourke v. Davis, L. R. 44 Cli. Div. 110. 
 
 "Olive V. State, 86 Ala. 88, 4 L. R. A. 33. 
 
 ^ Paige v. Rocky Ford Canal & I. Co. 83 Cal. 86. 
 
 ''Joslin V. Sones (Iowa, June 5, 1890) 45 N. W. Rt-p. 917. 
 
 17
 
 258 niPOSED DUTIES, PERSONAL. [Part I. 
 
 of an acre of land, into which a pole can be run down 10 feet or 
 more, where there is but one place from which the water runs off, 
 which is walled up in a rude way, and the water runs off from 
 this through a small channel about a foot deep.* 
 
 The owner of a mine may build a dam to protect himself from 
 water, if he use due diligence that it does not have the effect to 
 collect water from the adjacent territory, and eventually cast it 
 upon a lower mine."^ A city property owner has a right to 
 prevent surface water from flowing over his land by the building 
 of a wall, even though thereby the water is forced back into the 
 street; and his act in building such wall will not prevent a recovery 
 from the city for damages to his property from the improper con- 
 struction of a drain to carry off such water.^ A person having the 
 right of flowage through another's yard, while not exercising his 
 right, must not negligently injure nor actively interfere with ordi- 
 nary farm fences, maintained by the owner of the servient estate for 
 the protection of his land.^ Where the owner of a right conveys 
 it with the right to use an underground drain passing through an- 
 other lot owned by him, a subsequent collection of money from 
 him by the grantee for repairs of the drain does not constitute a 
 grant thereof or create an estoppel.^ The fact that a riparian 
 owner purchases the right of way through the channel of a creek 
 to flow waters brought to the creek by artificial means does not 
 show that the stream is not a natural watercourse.* Where a. 
 person having the right of flowage through another's land is not 
 exercising his right, the owner of the servient land may maintain 
 the ordinary farm fences required for the protection of his land,, 
 and the person entitled to flowage has no right to interfere with 
 such fences. The owner of soil over which the defendant claims 
 an easement has all the rights and benefits of ownership consistent 
 therewith. He is entitled to the herbage growing thereon and to 
 use it for raising crops or for pasturing his cattle.'' 
 
 ^Joslin V. Sones (Iowa, June 5, 1800) 45 N. W. Rep. 917. 
 ^Jones V. Robertson, 116 111. 543, 3 West. Rep. 581. 
 ^Gross V. Lampasas, 74 Tex. 195. 
 
 ^Smiih V. Langewald, 140 Mass. 205, 1 New Eng. Rep. 449. 
 ^Munsion v. Reid, 46 Hun, 399. 
 ^Paige v. Rocky Ford Canal & I. Go. 83 Cal. 86. 
 
 ''Sinithv. Langewald, 140 Mass. 305, 1 New Eng. Rep. 419: Perley v. Chandler, 
 6 Mass. 454; Adams v. Emerson, 6 Pick. 57; Atkins v. Bordman, 2 Met. 457.
 
 Chap. XII.] NEGLIGENCE, ETC., OF EASEMENT IN WATER. 259 
 
 The servitude of a drain througli a canal is continuous and ap- 
 parent, and may be acquired, in Louisiana, by a possession of ten 
 years.' In the grant of a right of drainage ''in and througli" a 
 certain private way, the right of drainage to an outlet beyond the 
 way is not conferred as an incident to the easement granted." 
 
 An unlawful obstruction to navigation, being a common nui- 
 sance, is remediable by indictment or by abatement; or a court of 
 equity may take jurisdiction upon an information tiled by the attor- 
 ney-general.^ But it would seem strange to see the ice-harvesters 
 accused of nuisance. Indeed, nuisance exists, in lawful business, 
 only where actual injury is sustained. It must be some essential in- 
 jury and damage. "People living in cities and large towns must sub- 
 mit to some annoyance, to some inconvenience, to some injury and 
 damage ; must even yield a portion of their rights to the necessi- 
 ties of business."* In an English case it was said : " Where great 
 works are carried on, which are the means of developing the na- 
 tional wealth, persons must not stand on extrem.e rights, and bring 
 actions for every petty annoyance.'" The law, in facilitating the 
 enjoyment of public rights, scans closely the grounds upon which 
 it admits the advantage of one person to be set off against the dis- 
 advantage of another. In an early English case" an extreme rule 
 was promulgated, in later cases not fully assented to, that the 
 staiths erected in the River Tyne should not be regarded as a pub- 
 lic nuisance, if the public benefit produced by them countervailed 
 the prejudice done to individuals, — the supposed public benefit 
 being that in consequence of the erections, coals would be brought 
 to the London market in better condition or for lesser price. In 
 subsequent cases it has been maintained that the benefit to be de- 
 rived from tolerating any impairment of the navigable conven- 
 ience must be direct, and that the staiths in the Tyne were a re- 
 jnote and indirect benefit merely, and not computable as a f>ublic 
 benefit in the sense of the term in which it should be used when 
 considering the question of nuisance ; and it has been explained 
 
 ^Levet V. LapeyroUerie, 39 La. Ann. 210. 
 
 2 Wetmore v. Fiske, 15 R. I. 366, 4 New Eng. Rep. 794. 
 
 3 Gould, Waters, § 121. 
 <Wood, Nuis. 11. 
 
 ^St. Helen's Smelting Co. v. Tipping, 11 Jur. 785. 
 
 ^Cox V. Russell, 6 Barn. »& C. 568. See Re Barre Water Co (Vt May 28 
 1890) 9 L. R. A. 195. ' '
 
 260 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 that the benefit must be a public benefit to the same public ; that 
 the same public, or some part of the public, which suffers the in- 
 convenience, must also receive the benefit; that it must be both 
 beneficial and injurious to the public using the same waters. A 
 satisfactory explanation of the doctrine appears in a discussion ])y 
 Jessel, M. R., in Attorney-General v. Terry, L. R. 9 Ch. 423, 
 where he says : " Then it may be asked, "What is a public benefit? 
 In my view, it is a benefit of a similar nature, showing that on a 
 balance of convenience and inconvenience the public at that place 
 not only lose nothing, but gain something, by the erection." In 
 that case it was decided that any benefit in the way of gaining 
 trade, to a single individual erecting a wharf in navigable waters, 
 was too remote to be held to be for the advantage of the public 
 generally, when the channel intruded upon was so narrow that 
 every foot of it was wanted for navigation. In the opinion an 
 illustration of public benefit is given by supposing the piers of a 
 bridge to be placed in the middle of a navigable river, thereby 
 " to some extent, to a more or less material extent, obstructing the 
 navigation," but the necessity is great and the injury trifling. In 
 that case, says the opinion, "it M^ould be a benefit that would 
 counterbalance the public injury." 
 
 In Woodman v. Pitman, 79 Me. 456, 4 New Eng. Rep. 699, it 
 was held that the right of traveling upon the ice of a river and 
 the right of cutting and taking the ice are natural and common 
 rights. That the right of way over the ice in a river where large 
 quantities of ice are annually taken for commercial purposes, and 
 where the traveler is provided with good roads upon either bank of 
 the river, and at established ferries across the river, is not a para- 
 mount right, and as the Legislature may regulate conflicting public 
 interests in the ice upon a tidal river, so in the absence of legis- 
 lative regulation such matters necessarily become the subjects of 
 judicial interpretation ; and the law has within itself elastic and 
 creative force enough to adapt itself to such questions. It was 
 said : " Applying the doctrine as carefully as it is guarded in 
 the cases most widely differing from the case of Cox v. Russell, 6 
 Barn. & C. 566, we feel assured that our conclusions are correct 
 in sustaining the contention of the present defendants. Here the 
 ice-gatherer and the traveler belong to the same public ; have pre-
 
 Chap. XIL] NEGLIGENCE, ETC., OF EASEMENT IN WATER. 261 
 
 sumably interests alike; were using the same river — the same 
 waters — though in different waj'S. The ice-takers were occupy- 
 ing the river under the natural right of dipping water therefrom, 
 and it is as if thousands of men were simultaneously exercising the 
 right together. The enterprise directly fosters the interests of 
 navigation on the river. On the other hand, the right of travel, 
 so far as pertaining to the navigation of the river, is, under the cir- 
 cumstances, at most, a secondary, theoretical right, and of no real 
 and essential value. Even private property may be taken for 
 public use by affording compensation. Here, if the traveler is not 
 allowed the use of the river, it is because more than compensation 
 is supplied to him in other roads provided for his use. We think 
 the trial was conducted upon a too literal application of the prin- 
 ciples which govern the use of navigable streams, and that the 
 jury were thereby prejudiced against the defendants to their in- 
 jury. These views being accepted, it necessarily follows that this 
 portion of the river should be considered as virtually closed dur- 
 ing the winter against general traveling. The whole tract cut 
 over must be constantly beset with danger to a traveler who does 
 not keep up an especial acquaintance with the condition of the 
 ice. Besides, the ice-fields, after they have been staked and fenced 
 and scraped — and in some instances connecting fields extend across 
 the river — have so far become the property of the appropriator, 
 that an action would lie against one who disturbs his possession.' 
 At the same time the appropriators should, by suitable means, 
 reasonably guard their fields against exposing to danger persons 
 who may be likely to innocently intrude upon them, if such like- 
 lihood may be seen to exist." But it was ruled that when that is 
 not done, and a traveler carelessly drives into an opening or upon 
 thin ice, caused by the ice operations, and is damaged, he cannot 
 recover from the ice-cutter. 
 
 Where the defendant had put a large quantity of logs on the 
 ice of a river and exercised no further care in regard to them, 
 and on the ice breaking up the injury was caused by the jam on 
 the ice whereby a channel was cut through the land of the plain- 
 tiff, and the logs carried upon it, the defendant was held liable for 
 the injury to the land.'' 
 
 ^People's Ice Co. v. Steamer Excelsior, 44 Mich. 229. 
 ^George v. Fi^ik, 32 N. H. 32.
 
 262 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 c. Identity of Use. 
 
 In order to secure the benefit of prescription, due care must be 
 used to preserve the identity of the easement claimed. Thus 
 where an old ditch was used for sixteen years and was then filled up 
 and a new ditch built some feet distant, which was used for four 
 years, the time of using the two cannot be tacked on so as to make a 
 prescriptive right of twenty years.' 
 
 It is not necessary that the person claiming a prescriptive right 
 to the use of water should have used it in the same precise manner 
 during the twenty years, or that it should have been used to propel 
 the same machinery. All that the law requires is that the mode 
 or manner of using the water shall not have been materially varied 
 to the prejudice of others." A continued use of the water, by 
 flowing it back upon the lot above, or detracting from the value 
 of its use below", for more than twenty years, would ripen into a 
 legal right, and a grant would be presumed.^ That flush-boards 
 have been put on much higher, and been so used to plaintiff's in- 
 jury, does not forfeit the actual right of the defendants.* 
 
 If the deviation in use is caused by natural obstructions, this 
 will not change the identity to defeat the prescription ;' nor if 
 made by the consent of the owner.° A change caused by good 
 husbandry will not afliect an easement, either natural or established 
 by prescription.^ The same proof of user which establishes the 
 right is equally conclusive in establishing the limitations of that 
 right.' 
 
 The occasional removal of flush-boards, so as to relieve an upper 
 
 ^Totelv. Bonnefoy, 123 111. 653, 12 West. Rep. 781. 
 
 Welknap v. Trimble, 8 Paige, 577, 3 N. Y. Ch. L. ed. 281; Smith v. Adams, 
 6 Paige, 435, 3 N. Y. Cli. L. ed. 1051; Kidd v. Laird, 15 Cal. ISl; BuUen 
 V. Runnels, 2 N. H. 255. 
 
 'Townsend v. McDonald, 14 Barb. 467. See Stiles v. Hooker, 7 Cow. 266. 
 
 *Eall V. Augsbury, 46 N. Y. 625; Baldwin v. Calkins, 10 Wend. 169; Ham- 
 ilton V. White, 5 N. Y. 9; Wright v. Moore, 38 Ala. 598; Whittier v. Co- 
 checo Mfg. Co. 9 N. H. 454; Payne v. Shedden, 1 Mood. & R. 382; Carr v. 
 Foster, 3 Q. B. 581; Morris v. Commander, 3 Ired. L. 510; Qerengerv. 
 Summers, 2 Ired. L. 229. 
 
 ^Gentleman v. Sotile,d2 111. 271. 
 
 *£elsey v. Furman, 36 Iowa, 614; Com. v. Old Colony & F. R. R. Co. 14 
 Gray, 93. 
 
 ''Peck V. Herrington, 109 111. 611. 
 
 ^Burnham v. Kempton, 44 N. H. 90; Smith v. Buss, 17 Wis. 228.
 
 Chap. XII.] IDENTITY OF USE. 2G3 
 
 mill, will not destroy the idcntit}' of the use.' The extent of the 
 flowing, rather than the height of the dam, is the true test.' One 
 cannot, however, change the use, as from an irrigating ditch to a 
 mill-race, increasing the flow.' 
 
 If an easement during the pleasure of a third person is valid, it 
 requires plain words to create and identify it, and it cannot be in- 
 ferred from long continued use.* In the absence of an agree- 
 ment and assertion of positive right, no length of time creates 
 any easement by which the owner of lower land is prevented from 
 using his lands as he sees fit, although such use as he puts them to 
 lessens the facilities for the surface drainage of an adjacent owner, 
 so long as the lower proprietor erects no barriers to the free and 
 full flow of the surface waters.^ Piling wood in an alley near 
 the end will not interrupt prescription, if there is space enough 
 left for easy passage with a team." Statutory provisions usually 
 merely fix the time in which a right by prescription shall be ac- 
 quired, and do not alter the requisites which at common law were 
 open to the growth of the prescriptive right; and, accordingly, to 
 perfect an easement by occupancy under such statutes the enjoy- 
 ment must be adverse, continuous, open and peaceable, under a 
 claim of right.^ When user has been adverse for more than sixty 
 years, a mere casual remark made by the owner of the dominant 
 to the owner of the servient estate, at about the middle of the 
 period, is to be received with caution, when offered to prove the 
 origin of the user in a license.* Servitudes and easements and 
 other charges on land are deemed to be in the sense of the law 
 immovables and governed by the lex rei sitae. Thus, Judge Story 
 declares that "not onlj^ lands but servitudes and easements and 
 
 ^Hall V. Augshury, 46 N. Y. 623. 
 
 ^Meriz v. Dorney, 35 Pa. 519; Pen-in v. Garfield, 37 Vt. 310; Carlisle v. 
 
 Cooper, 19 N. J. Eq. 260; Williams v. Nelson, 23 Pick. 141. 
 ^Darlington v. Painter, 7 Pa. 473. 
 ^Johnson V. Knapp, 150 Mass. 267. As to identification of easement, see 
 
 Leonard v. Bart (N. J. Dec. 31, 1885) 1 Cent. Rep. 673; Snyder's App. 
 
 (Pa. June 17, 1887) 6 Cent. Rep. 270; Long v. Gill, 80 Ala. 408; FitrMarg 
 
 R. Co. V. Frost, 147 Mass. 118, 6 New Eng. Rep. 374; Rmoell v. Doggeit, 
 
 143 Mass. 483, 3 New Eng. Rep. 756. 
 « White V. Sheldon (Sup. Ct. Dec. 30, 1889) 28 K Y. S. R. 475. 
 ^McKimie v. Elliott (111. June 12, 1890) 24 N. E. Rep. 965. 
 ''Thomas v. England, 71 Cal. 456. 
 ^Wangery. Uipple(Pi\. March 19, 1888) 11 Cent. Rep. 776.
 
 264 IMPOSED DUTIES, PERSONAL. [Fart I. 
 
 other charges on lands, as mortgages and rents and trust estates^ 
 are deemed to be in the sense of the law immovables and governed 
 by the lex rei sitCB. The only process by which title can be made 
 to such liens, or the only way by which such liens can be enforced, 
 is that of the situs^^ 
 
 d. Appropriating for an Easement. 
 
 On appropriating for an easement, the owner retains every 
 right not inconsistent with the easement, as the right to ice 
 formed on the easement, minerals under the land appropriated 
 and the soil, gravel, trees and herbage. Even the grant of 
 an easement to the public, as a street or a highway (whether 
 by dedication or deed), would not convey a fee in the soil, 
 but simply a right, the reasonable use of which would be pro- 
 tected by law, under the police regulations alone, which make the 
 wrongful obstruction of a public street a misdemeanor, punishable 
 under the provisions of the criminal law. So a structure which 
 projects over a street of a city, as a cornice of a building, is a nui- 
 sance which the corporate authorities may abate,* as it is the duty 
 of the authorities to keep the streets reasonably safe.^ 
 
 In Bybee v. State, 94 Ind. 443, it is held that a bridge across a 
 street, for private use, is an indictable nuisance, although it is so 
 high above the surface as not to impede the passage of ordinary 
 vehicles. It is only figuratively speaking that the rights of the 
 public in a public street or highway extend beneath the surface 
 to the centre of the earth and above its surface to the highest 
 heavens, so that no person may wrongfully obstruct such public 
 rights ; and whether or not the particular structure erected or 
 maintained obstructs or may obstruct wrongfullj^ the public street 
 or highway, is a question of fact for the jury.* 
 
 In Goodtitle v. Alker, 1 Burr. 133, it was said of a way that 
 " the owner of the soil has a right to all above and under ground, 
 
 'Whart. Confl. Laws, § 291; Pittsburgh & State Line B. Go. v. Bothschild 
 
 (Pa. May 31, 1886) 4'Cent. Rep. 107. 
 '^Qrove v. Fort Wayne, 45 Ind. 439. 
 ^Higert v. Oreencastle, 43 Ind. 574. 
 *Bybee v. State, 94 Ind. 443; Grove v. Fort Wayne, 45 Ind. 429, 15 Am. Rep. 
 
 262; Genterville v. Woods, 57 Ind. 193; Logansport v. Dicks, 70 Ind. 65, 36 
 
 Am. Rep. 166.
 
 Chap. XII.] APPROPRIATING FOR AN EASEMKNT. 2G5 
 
 except only the right of passage for the King and liis people." 
 In Julien v. Woodsmall,, 82 Ind. 5G6, approved in Brookville <& 
 M. IlydrauliG Co. v. Butler, 91 Ind. 137, it was held that ice 
 formed on the right of way of the party belongs to the owner of 
 the soil, who may maintain an action against a person who removes 
 it without his consent ; and the owner of the fee is not only owner 
 of the minerals under the land appropriated, but also owner of the 
 soil, gravel, trees and herbage, except as needed by the company 
 in constructing, repairing and operating its road.' One who owns 
 land subject to an easement has no right to use it in a way incon- 
 sistent therewith.' The extent of the easement must be de- 
 termined by the true construction of the grant or reservation by 
 which it is created, aided by any circumstances surrounding the 
 estate and the parties which show their intentions.' The mode 
 and extent of the use necessarily varies not only according to the 
 exigencies of each particular kind, but to the varying circum- 
 stances of each species, of public works.* In Massaeh'isetts the 
 town is liable for "damages occasioned by laying, making or 
 maintaining " a sewer.* The provision in the Railroad Act is 
 similar — " damages occasioned by laying out, making and main- 
 taining its road.'-* The provision in regard to public ways is * 
 " If damage is sustained by any person in his property by the 
 laying out.'" Pub. Stat., chap. 14, § 16, which also applies to 
 sewers, provides that, in estimating the damage, " regard shall be 
 
 ^TaylMV V. New York & L. B R. Go. 38 N. J. L. 28; Preston v. Dubuque <St 
 P. R. Co. 11 Iowa, 15; Aldrich v. Drury, 8 R. I. 554; Hassan v. Oil Creek 
 A. R. R. Co. 8 Phila. 556; Pittsburgh & L. E. R. Co. v. Bruce, 104 Pa. 
 23; Piatt v. Pennsylvania Co. 43 Ohio St. 223, 1 West. Rep. 11, 
 
 ' *Burnham v. Nevins, 144 Mass. 88, 3 New Eng. Rep. 792. 
 
 *Brainard v. Clapp. 10 Gush. 10; Hayden v. Shillings, 78 Me. 413, 3 New 
 Eng. Rep. 174; Bakeman v. Talbot, 31 N. Y. 366; IlempJull v. Boston, 8 
 Gush. 195; Cowling v. Eigginson, 4 Mees. & W. 245; Brown v. Stone, 10 
 Gray, 61; Gerrard v. Cooke, 2 Bos. & P. N. R. 109; Fitzell v. Leaky, 72 
 Gal. 477; Alexander v. Tolleston Club, 110 III. Q5; Rowell v. Dor/gett, 143 
 Mass. 483, 3 New Eng. Rep. 756; Sutton v. Groll, 42 N. J. Eq. 213, 4 
 Cent. Rep. 251; Gerrish v. Shattuck, 132 Mass. 235; Kansas Cent. R. Co. 
 V. Allen, 22 Kan. 285. See ante, p. 241, note 1; Adams v. Emerson, 6 
 Pick. 57; Appleton v. Fullerton, 1 Gray, 186; Codman v. Evans, 1 Allen, 
 443; Stackpole v. Healy, 16 Mass. 33; Worcester v. Western R. Corp. 4 
 Met. 564, 569; Atkins v. Bordman, 2 Met. 457, 467; Pkipps v. Johnson, 
 99 Mass. 26. 
 
 »Pub. Stat. chap. 50, § 3. 
 
 •Pub. Stat. chap. 112, § 95. 
 
 ■"Pub. Stat. chap. 49, § 68.
 
 2G6 IMPOSED DUTIES, PERSONAL. [Part I. 
 
 had to all the damages done to the party, whether bj taking his 
 property, or injuring it in any manner." Under these provisions 
 damages can be recovered for injuring land not taken, and not 
 abutting upon land taken.* In Trowhridge v. Broohiine^ 144 
 Mass. 139, 3 New Eng. Rep. 789, the respondent contended that 
 it had the right of an owner of the land taken to make excava- 
 tions in it and thereby drain its neighbor's well ; that its act, with- 
 out the authority and protection of the statute, was lawful and 
 invaded no right of the petitioner, and gave her no right of action; 
 and that, in accordance with the decisions under the English Land 
 Claim Act, the statute should be construed to intend only damages 
 which, but for the protection of the statute, could be recovered 
 by action,' But it was ruled that the respondent does not stand, 
 in this respect, in the position of a purchaser of the land taking 
 the rights of its grantor. It is not the absolute owner of the 
 land, but took and holds the right to occupy it for certain pur- 
 poses, and to do upon it certain acts authorized by the statute. In 
 ■exercising its rights it acts, not under the title of the owner, but 
 by virtue of the authority given by a statute, and under the obli- 
 gation imposed by the statute to pay all damages occasioned 
 thereby. The petitioner had a right to collect and keep the water 
 in her well, and depriving her of it, if it injured her land, was a 
 damage to her. It is no answer that other land owners had the 
 same right in respect to their lands, and that if the petitioner's 
 damages had been in consequence of the exercise of those rights 
 in his land by a land owner, she could not have recovered the dam- 
 ages from him. The respondent's rights in the land, and authority 
 to do the act which caused the damage, are given by the same 
 statute which gives a remedy to the petitioner to recover the dam- 
 ages. The precise question presented here was decided, in regard 
 to a railroad, in Parker v. Boston & M. R.Go., 3 Cush. 107. In 
 that case damages were alleged to have been occasioned in the 
 construction of a railroad, to land not within and adjoining the 
 location of the road, by changing the grade of a highway and by 
 draining a welL It is not suggested that either would be a cause 
 
 ^ Dodge v. E-^ftex County Gimra. 3 Met. 380; P^'ker v. Boston & M. li. Co. 3 
 
 Cush. 107; Marsden v. Cambridge, 114 Mass. 490. 
 'See New River Co. v. Johnson, 3 El. & El. 435; Metropolitan Board of 
 
 Works V. McCarthy, L. R. 7 H. L. 243.
 
 ■Ohap. XII.] APPROPEIATING FOR AN EASEMENT. 267 
 
 •of action at common law. Mr. Chief Justice Shaw says that the 
 main question in the case is "whether a party having land with 
 buildings thereon, lying near the track of a railroad, but not 
 crossed by it, can recover compensation for incidental damage 
 caused to his land by the construction of the railroad and the 
 structures incident to and connected with it," and his conclusion 
 is " that a party who sustains an actual and real damage, capable 
 of being pointed out, described and appreciated, may sue a com- 
 plaint for compensation for such damages." In regard to the 
 well he says : " The claim for damages on this ground does not 
 <3epend on the relative rights of owners of land, each of whom 
 has a right to make a proper use of his own estate, and sinking a 
 well upon it is such proper use ; and if the water, by its natural 
 current, flows from one to the other, and a loss ensues, it is dam- 
 num absque injui^ia. But the respondents did not own land ; 
 they only acquired a special right to and usufruct in it, upon the 
 •condition of paying all damages which might be thereb}' occasioned 
 to others." 
 
 Marsden v. Camhridge, ll'i Mass. 490, is directly to the point 
 that the petition for damages for taking land for a highway is not 
 a substitute for an action at law. In that case the petitioner owned 
 one half of a dwelling-house and the land under it. Part of the 
 land under the other half of the house was taken for a highway, 
 and part was left between the location and the petitioner's land 
 and half of the house. The owner of the other half removed it. 
 occasioning loss of support and shelter to the petitioner's half. 
 The court decided, without regard to the petitioner's rights as 
 between himself and the adjoining owner, that the petition could 
 be maintained. Mr. Justice Wells says : " By the laying out of 
 the street, the petitioner was deprived of the support and shelter 
 for his house from the other part of the double structure which 
 rested upon the land of his neighbor, and was consequently put 
 to the expense of a new wall for his own part. For the continu- 
 ance of that support and shelter, of which he was in the actual 
 enjoyment, he had at least the title and assurance arising from 
 mutual necessity and natural advantage, of which no one but his 
 neighbor could deprive him. That security Avas taken away by 
 the location of the street in such manner as substantially to destroy
 
 268 IMPOSED DUTIES. PERSONAL. [Part I, 
 
 the part of the building upon the adjoining land, and render it 
 unHt for further use and maintenance as a dwelling." The de- 
 cisions in regard to damages occasioned by taking the waters of 
 great ponds are also in point. "When the Commonwealth grants 
 a right to take the water, a provision that payment shall be made- 
 for all damages sustained by any person in his property by the- 
 taking is held to include damages to mill owners by depriving^ 
 them of the water, although they should have no right to it a& 
 against the Commonwealth or its grantee.' 
 » Watuppa Reservoir Co. v. Fall Bicer, 134 Mass. 267.
 
 PART II. 
 
 WATERS, DUTIES RESPECTING AND RIGHTS THEREIN. 
 
 CHAPTER XIII. 
 
 RIGHTS AND WRONGS IN SURFACE WATERS. 
 
 Sec. 23. Surface and Percolating Water and Artificial Drainage. 
 Sec. 24. Pollution of Underground Currents, Springs and Streams. 
 Sec. 25. Distinction hetiueen the Rights in Surface and Suhter- 
 
 ranean Waters. 
 Sec. 26. Duty of Municipal Corporations, as doners of Streets, 
 
 Alleys and Park^, not to Cast the Filth of Tlieir Seioers U2)0n 
 
 Other Lands. 
 Sec. 27. Injunction to Prevent Pollution of Waters. 
 Sec. 28. Right of Land Owner to Control Mere Surface Waters or 
 
 Superficially Percolating Waters. 
 
 Section '22,.—Surface and Percolating Water and 
 Artificial Drainage. 
 
 "When one erroneously, but in good faith, assumes, without any 
 fault on his part or on the part of the person his action affects, 
 that he has a right to do what he does, and his act, done in the 
 assertion of his supposed right, turns out to have been an inter- 
 ference with another's property, he is generally held to have as- 
 sumed the risk of maintaining the right which he asserts, and the 
 responsibility of the natural consequences of his voluntary act.' 
 
 "When the effect of paving a yard is to prevent the water pene- 
 trating the soil, and the water conducted from the roof to the 
 
 ^Brown v. Collins, 53 N. H. 442; Clmldre B. Co. v. Foster, 51 N. H. 490; 
 Metcalf, /., in Stanley v. Gaylord, 1 Gush. 536, 551; McCloskey v. Powell, 
 123 Pa. 62; Concanan v. Boynton, 76 Iowa, 543; Bagley v. Stephens, 78 
 Ga. 304; Whitney v. Hunlinf/ton, 37 Minn. 197; Allison v. Little, 85 Ala. 
 512; Jeffries v. Eargis, 50 Arli. 65; Little Pittsburg Con. Min. Co. v. Little 
 Chief Con. Min. Co. 11 Colo. 223.
 
 270 IMPOSED DUTIES, PERSONAL, [Part II. 
 
 privy is too great for the drains to carry away, an adjacent pro- 
 prietor may recover damages for the escape of the water without 
 proof of negligence.' So if the spout from defendant's roof cast 
 water upon plaintiff's wall and destroy it, he is answerable for the 
 injury, without notice to remove the spout.'' Damages may be 
 recovered for overflowing lands in building a canal,^ or making a 
 mill-dam authorized by law.* One cannot pollute the air upon his 
 neighbor's premises,^ nor abstract the soil," nor cast anything 
 upon his land.' 
 
 In Rylands v. Fletcher^ L. E. 3 IT. L. 330, where there was 
 a reservoir created artificially, from which the water flowed through 
 some passages ajDparently filled up and long disused into the plain- 
 tiff's mine. Lord Cranworth expressed the opinion that if a person 
 bringSjOr accumulates,on his land anything which, if it should escape, 
 may cause damage to his neighbor, he does so at his peril. If it does 
 escape and cause damage, he is responsible, however careful he 
 may have been, and whatever precautions he may have taken to 
 prevent the damage. He distinguishes between natural percola- 
 tion, for which no liability exists, and that which is caused arti- 
 ficially.* "Where nature is aided by artificial methods and unusual 
 quantities of water are thus collected and used, the one resorting 
 to such methods and such use, which is called a "non-natural" use, 
 will be answerable to his neighbor for an injury resulting, although 
 the excess of water reach his neighbor through natural channels,, 
 according to the rule above stated.' This doctrine, as applied in 
 
 "^Jutte V. Hughes, 67 K Y. 267; Martin v. Benoist, 20 Mo. App. 262, 2 West. 
 
 Rep. 541. 
 '^Copper V. Dolvin, 68 Iowa, 757. 
 ^Selden v. Delaware & H. Ganal Go. 29 N. Y. 634; Bradley v. New York & 
 
 N. H. R. Co. 21 Conn. 294. 
 ^Crittenden v. Wilson, 5 Cow. 165. 
 ^Morley v. Pragnell, Cro. Car. 510. 
 «Rolle, Abr. 565, note. 
 "^Lambert v. Bessey, Sir T. Rayna. 421. 
 «See also Fletcher v. 8mith, L. R. 2 App. Cas. 781, L. R. 7 Excb. 305; Mtro- 
 
 Phosphate & 0. G. M. Go. v. London & St. K Docks Go. L. R. 9 Ch. Div. 
 
 503; Baird v. Williamson, 15 C. B. N. S. 37G; Whitehouse v. Felloices, 30 L. 
 
 J. N. S. C. P. 305; Beaulieu v. Finglam, 2 Hen. IV. p. 18, pi. 6; CaMll v. 
 
 Eastman, 18 Minn. 324; Jones v. Festiniog B. Co. L. R. 3 Q. B. 733; 
 
 Furlong v. Carroll, 7 Ont. App. 145; Elwell v. Groicther, 31 Beav. 163. 
 'See authorities last cited, and also West Cumberland Iron <& 8. Co. v. Ken- 
 yon, L. R. 6 Ch. Div. 773, reversed on appeal, L. R. 11 Ch. Div. 782; 
 
 Musgrave v. Smith, 37 L. T. N. S. 367; Gould, Waters, § 295.
 
 Chap. XIII.] SUKFACE WATER AND DRAINAGE. 271 
 
 JRylands v. Fletcher, L. R. 3 II. L. 330, has been recognized in 
 Massachusetts, Kentucky and Minnesota.' The doctrine is denied 
 in ISTew York, New Jersey, New Hanipsliire and California.' 
 
 In Wilson v. New Bedford^ 108 Mass. 2G1, it is said that tlie 
 cases in Yermont are, to some extent, in apparent conflict with 
 Monson & B. Mfg. Co. v. Fuller., 15 Pick. 55-i; Fuller v. Chico- 
 pee Mfg. Co. 16 Gray, 46; Ball v. Nije, 99 Mass. 582 ; Pixley v. 
 Clark, 35 N. Y. 520, and Rylands v. Fletcher, L. R. 3 H. L. 330, 
 in that they do not seem to distinguisli, as these authorities do, 
 between natural and artificial causes of injury, and a distinction 
 drawn by Lord Cranworth in the last case between natural perco- 
 lation and that which is caused artificially is pointed out : " If 
 water naturally rising on defendant's land had, by percolation, 
 found its way down to plaintiff's mine at the old workings, and so 
 had impeded his operations, that would not have afforded him any 
 ground of complaint." But after showing that that is not in the 
 cause of action, the court proceeds ; " The defendants, in ordei- 
 to attain an object of their own, brought onto their land or onto 
 land which, for this purpose, may be treated as being theirs, a 
 large accumulated mass of water, and stored it up in a reservoir. 
 The consequence of this was damage to the plaintiff, and for that 
 damage, however skillfully and carefully the movement was made, 
 the defendants, according to the principles and authorities to 
 which I have adverted, were certainly responsible." The effect 
 of the decision in Pixley v. Clark, 35 N. Y. 520, was that, 
 although the artificial embankment prevented the water from 
 overflowing onto the neighboring land, yet the owner of the em- 
 bankment would be liable for injury caused by excessive percola- 
 tion upon the neighboring land. 
 
 In Losee v. Buchanan, 51 N". Y. 477, Earl, C, says: "It is 
 sufiicient, however, to say that the law as laid down in these eases' 
 is in direct conflict with the law as settled in this country." Here, 
 if one builds a dam upon his own premises and thus holds back 
 
 ^Vfihon V. New Bedford, 108 Mass. 261; Ball v. Nye, 99 Mass. 582; 
 
 Shipley v. Fifty Asso. 101 Mass. 251; Gorham v. Gross^, 125 3Iass. 232; 
 
 Hears v. Dole, 135 Mass. 508; Kinnaird v. Standard Oil Co. (Ky. Jan. 25, 
 
 1890)7 L. R. A. 451; Cahill v. Eastman, 18 Minn. 324. 
 ^Losee v. Buchanan, 51 N. Y. 476; Marshall v. Wehcood, 38 N. J. L. 
 
 339; Swett v. Cntts, 50 N. H. 439; Garland v. Toione, 55 N. H. 56; Everett 
 
 V. Hydraulic Flume Tunnel Co. 23 Cal. 225. 
 *Rylands v. Fletcher, L. R. 3 H. L. 330; Smith v. Fletcher, L. R. 7 Exch. 305.
 
 272 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 and accumulates the water for his benefit, or if he brings water 
 upon his premises into a reservoir, in case the dam or the banks of 
 the reservoir give way and the lands of a neighbor are thus 
 flooded, he is not liable for the damage without proof of some 
 fault or jieghgence on his part.* 
 
 The true rule is laid down in the case of Livingston v. Adams, 
 8 Cow. 175, as follows : " Where one builds a mill-dam upon a 
 proper model, and the work is well and substantially done, he is 
 not liable to an action although it break away, in consequence of 
 which his neighbor's dam and mill below are destroyed. Negli- 
 gence should be shown in order to make him liable." 
 
 In Marshall v. Welwood, 38 N. J. L. 339, Beasley, Ch. J., says: 
 " The fallacy in the process of argument by which judgment is 
 reached in the case of Fletcher v. Rylands, L. R. 1 Exch. 280, 
 appears to me to consist in this: that the rule mainly applicable 
 to a class of cases, which I think should be regarded as in a great 
 degree exceptional, is amplified and extended into a general if not 
 universal principle." 
 
 In Garland v. Toione, 55 IST. H. 57, Ladd, J., referring to the 
 case of Rylands v. Fletcher, L. R. 3 H. L. 330, says : " I am 
 not aware that any court this side of the Atlantic has gone so far 
 as this; and I apprehend it would be a surprise "not only to that 
 large class of our people engaged in various manufacturing opera- 
 tions, who use water-power to propel their machinery and for that 
 purj)ose maintain reservoirs, but to the legal profession, to hold 
 that in case of the breaking away of such reservoirs there is no 
 question of care or negligence to be tried, but that he who has 
 thus accumulated water in a non-natural state on his own prem- 
 ises is liable at all events as matter of law, in case it escapes, for 
 the damage caused by it. As a general proposition it is safe to 
 say that the owner of the land has a right to make reasonable use 
 of his property ; and that right extends as well to an unlimited dis- 
 tance above the earth's surface as to an unlimited distance below."'' 
 
 'Angell, "Watercourses, § 336; Laphamv. Curtis, 5 Vt. 371; Todd v. Co- 
 chell, 17 Cal. m-, Everett v. Hydraulic F. T. Go. 23 Vt. 235; Shrewsbury 
 V. Smith, 12 Cush. 177; Livingston v. Adams, 8 Cow. 175; Bailey v. New 
 York, 3 Hill, 531, 2 Denio, 433; Sheldon v. Sherman, 42 N. Y. 484. 
 
 ^See also Anajell, Watercourses, 336; Washburn, Easements, chap. 3, § 7; 
 Jones V. Western Vt. E. Co. 27 Vt. 399; Pennsylvania Coal Co. v. San- 
 derson, 113 Pa. 126, 4 Cent. Rep. 475.
 
 Oliap, XIII. J SL'KFAUE WATER AND DRAINAGE. ii73 
 
 In JVichols r. MiD'sIand, L. R. 10 fixcli. 255, the court sustained 
 the ruling in Rijlawh v. Fletcher, L. II. 3 II. L. 330, on the 
 ground tliat in that case the defendant poured the water into the 
 plaintiffs mine, although innocently, through unknown channels, 
 but, in the case then under judgment, the defendant stored watci' in 
 reservoirs in such quantities that, if let loose, it would do, as it did, 
 mischief; but as the act itself was lawful, and the escape was caused 
 bv the supervening -y^'i' major of the water caused by the flood, super- 
 added to the water in the reservoirs — which of itself would have 
 been innocuous — the defendant was discharged of liability. The 
 defendant could not be said to have allowed the water to escape, 
 if the act of God or national enemies were the real cause. Is or 
 can he be thus cliai'ged when water is released by the act of a 
 third party ;' nor where the artificial construction is maintained 
 for the common benefit, and the immediate cause of the injury is 
 of such a trivial character as to have been wholly unexpected;'' 
 nor where the injury is done in the exercise of powers specially 
 conferred by law;' nor where water escapes fi-om an upper fioor 
 without negligence of tenant can the latter be held liable.'* 
 
 Although a work of improvement is authorized by statute and the 
 act is therefore in the exercise of a right, yet if it is done in such 
 a negligent manner as to cause injurj^ to others, the license will be 
 no protection. The construction of a railroad in such a manner 
 as to unnecessarily cause a fiow of water into a subjacent mine 
 will render the company f'esponsible for the injury.^ Where one 
 h:.. wrongfully accumulated water, he is responsible for damages 
 which may result from the escape of the water, although the lat- 
 ter may be without his negligence.' Permitting sewage to escape 
 into an adjoining cellar, from the occupier's sewer being out of 
 repair, will render the latter liable without proof of negligence.' 
 
 ^Box V. Juhh, L. R. 4 Exch. Div. 76. 
 
 '^Carstairs v. Taylor, L. R. G Exch. 217. 
 
 ^Madras R. Co. v. Zemindar, L. R. 1 Ind. App. 3G4, 30 L. T. N. S. 770, 22 
 Week. Rep. 865. 
 
 '^R)ss V. Fedden, L. R. 7 Q. B. 661; Ea/ciiiv. Brown, 1 E. D. Smith, 36. 
 ^Biignall v. London & N. W. R. Co. 7 Hurl. & N. 423, affirmed in Exche- 
 quer Chamber, 1 llurl. &, C. 544. 
 ^Frye v. Moor, 53 Me. 583. 
 
 "'Humphries v. Cousins, L. R. 2 C. P. Div. 239; Martin v. Benoist, 20 Mo, 
 App. 262, 2 West. Rep. 541. 
 
 18
 
 274 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 Section 24. — Pollutiojb of Unclergrouncl Currents, 
 Springs and Streams. 
 
 lu the recent case of Kinnaird v. Standard Oil Co. (Kj.), T L. 
 R. A. 451, decided Jan. 25, 1890, the facts are these : Kinnaird 
 was the owner of a small tract of land containing about four acres^ 
 lying adjacent to or within the boundary of the Town of Lancas'- 
 ter. On this Lmd is a valuable and never-failing spring, that 
 app3ars upon the surface of the ground at the foot of a hill, and 
 had been used as such for a long period of time. In November 
 of the year 1886 the Standard Oil Company leased from the Ken- 
 tucky Central Railroad Company a site upon which to build a 
 warehouse for the storage of its coal oil. They erected the ware- 
 house, and placed in it their coal oil, that leaked from the casks, 
 and saturated the ground, both on the inside and outside of the 
 building. The floor of the house consisted of a bed of cinders- 
 about twelve inches in depth, that supplied the place of plank, 
 that, as the proof shows, would become very inflammable when 
 saturated with the oil. The bed of cinders, therefore, rendered 
 the property much more secure than if a floor had been laid in 
 the building. The spring is located about 200 yards from the oil- 
 house, with a hill or rise in the ground between the two, and the 
 proof conduces to show that water on the surface of the ground 
 at the oil-house would naturally flow in an opposite direction from 
 the spring, because it is lower than the ground where the spring 
 emerges from the hill. After the oil had been deposited in the 
 building erected for that purpose, it leaked from the casks, and, 
 being of such a penetrating character, it passed into the ground,, 
 and polluted the water or stream from which the spring was sup- 
 plied. The oil mingled with underground currents of water that 
 fed the spring, and caused the injury. The court below, on hear 
 ing the testimony, gave a peremptory instruction to the jury, on 
 the ground that no action could be maintained for contaminating 
 the subterranean water that flowed into the spring, as the oil com- 
 pany had the right, in the exercise of its legitimate business, to 
 build the house, and store the oil within it, on its own land, al- 
 though the property of its neighbor was injured by it. It is said 
 that if this had been surface water, or a vein of water under
 
 Chap, XIII.] POLLUTION OF UNDERGROUND CURRENTS. 275 
 
 ground, with a well-defined and known channel, thcri<jht to main- 
 tain the action could not be doubted ; but as to hidden or unknown 
 veins of water, the rule is asserted that they belong to the soib 
 constitute a part of it, and may be used, controlled or removed by 
 the owner in the same manner that he could the soil throucrl* 
 which the water percolates or runs. The theory is that, this watej- 
 being the property of the owner of the land, its use, if not for- 
 bidden by law, cannot work an injury to his neighbor, in the ab 
 sence of a design to do so, however great the damage sustained. 
 This view of the legal rights, is admitted to be sustained by nu- 
 merous reported cases, involving C|uestions analogous in almost 
 every particulai-. 
 
 The case of Brown v. lllhis, reported in 27 Conn. 84, was an 
 action on the case for a nuisance, and in the declaration it was 
 alleged that offensive matter in the manufacture of gas, deposited 
 on the surface of the ground, had permeated into the soil around 
 and adjoining the well, and into the well itself, corruptino- the 
 water and rendering it unfit for use. The court, in applyino- the 
 rule in regard to subterranean currents, and in discussing the in- 
 struction given by the lower court, held that the ownership of the 
 land sanctioned and justified the use made of it by the defendant, 
 and although the latter was injured, if the damage resulted frou) 
 the mingling of the noxious matter with the underground vein of 
 water, it was an injury without any violation of the plaintiff's le- 
 gal rights by the defendant, and the latter " was under no leo;al 
 obligation to prevent it in the first instance, or a continuance of 
 it afterwards." The rule that gives to the owner of the soil all 
 that lies beneath its surface, whether oil or water, was made to 
 apply in the case cited, with the right of the owner to use it at 
 his pleasure, and in any legitimate Tuode, and the plaintiff denied 
 the right of recovery upon that ground. 
 
 The case of Dillon v. Acme Oil Co.^ 49 Plun, 5G5, was whert- 
 the plaintiff owned two lots, upon which he had erected dwell- 
 ings, and had dug a well on each lot, that he used for household 
 purposes. The defendant erected an oil refinery about 300 feet 
 distant from the lots of the plaintiff, and the oil, leaking on the 
 surface, had permeated the ground until it reached some under- 
 ground stream that carried it to the wells of the plaintiff. An
 
 276 IMPOSED DUTIES, PERSONAL. [Part 11. 
 
 injunction was sought, but the relief denied, for the reason that 
 the defendant had the right to use that which he owned for legit- 
 imate purposes, provided, in doing so, he exercised proper care 
 and skill to prevent injury to others; and, as an illustration of the 
 rule, it was there said that he might dig a well or ditch, and cut 
 ■off a hidden stream of water that supplied his neighbor's well, and 
 thereby render it useless. 
 
 In Bloodgood v. Ayers, 108 N. Y. 400, 11 Cent. Eep. 108, it 
 was also held that no person is liable for interrupting a stream sup- 
 plying a well or spring, unless he knew beforehand where the 
 stream was, — a doctrine well settled by an unbroken line of au- 
 thority. That one may divert or consume all the water from un- 
 derground currents, that have no fixed known channels, and 
 appropriate all the water to his own use, and that he is the abso- 
 lute owner of this water while it remains under his soil, with the 
 right to appropriate it as he pleases for legitimate use, is also de- 
 cided. This use or right of property is, however, only temporaiy, 
 and remains only so long as the water stands on or under his land. 
 He cannot follow it when it leaves his premises, and passes to the 
 land of his neighbor ; and it may therefore be said that he has 
 not the absolute title, as each owner of the land is vested with the 
 right to use the water, and appropriate the whole of it when it 
 reaches him. 
 
 In the case of Ujjjohn v. Richland Board, of Health, repoi'ted 
 in 46 Mich. 542, the opinion delivered by Mr. Justice Cooley, it 
 was held to be an established rule that owners of the soil have no 
 rights in sub-surface waters not running in well-defined channels, 
 as against their neighbors who may withdrav/ them by excava- 
 tions ; and therefore, if no right of action exists for ruining the 
 plaintiff's well by withdrawing the water, it was said, perhaps 
 without sufficient consideration, that it is difiicult to understand 
 how corrupting its waters by a proper use of the adjoining 
 premises can be actionable, when there is no intent to injure, and 
 no negligence, as each act would destroy the well of the plaintiff. 
 
 But the Supreme Court of Kentucky' concluded, however, after 
 a careful review of the authorities, that there is a manifest distinc- 
 tion between the right of the owner of land to use the underground 
 
 ^Kinnaird v. Standard Oil Co. (Ky. Jan. 25, 1890) 7 L. R. A. 451.
 
 Chap. XIII.] POLLUTION OF UNDERGROUND CURRENTS. 
 
 277 
 
 water upon it, that originates from percolation or is found in liid- 
 den veins, and the right to contaminate it so as to injure or destroy 
 the water when passing to the adjoining land of his neighbor. 
 
 The familiar doctrine is recognized that one must so use his 
 property as not to injure his neighbor, and it is said because the 
 owner has a right to make an appropriation of all the undei-gi-ound 
 water, and thus prevent its use by another, he has no riglit to poi- 
 son it, however innocent] j. or to contaminate it, so that when it 
 reaches his neighbor's land it is in such condition as to be unfit 
 for use either by man or beast. One may be entitled by contract 
 with his neighbor to all tlie water that flows in a stream on the 
 surface that passes through the land of both, and, while he can 
 thus appropriate it, it is denied that he has a right to pollute the 
 water in such a manner as, when it passes to his neighbor, its use 
 becomes dangerous or unhealthy to his family, or to the beast on 
 his farm. As soon as the water leaves the land of the one who 
 claims the right to use it, and runs on the land of another, the 
 latter has the same right to appropriate it, and, if property, it 
 then becomes as much the property of the last as the first pi-opri- 
 etor. The owner of land has the same right to the use and enjoy- 
 ment of the air that is around and over his premises as he has to 
 use and enjoy the water under his ground. He is entitled to the 
 use of what is above the ground as well as that below it, and still 
 it is said it will scarcely be insisted that he can poison the atmos- 
 phere with noxious odors that reach the dwelling of his neio-hbor 
 to the injury of the health of himself or family.' 
 
 If not, the court says, in lu/maird v. Standard Oil Co., 
 supra, there is no reason why he should be permitted to so 
 contaminate the water that flows from his land to his nci^-h- 
 bor's, producing the same results, and still escape liability for 
 the damages sustained, and whether the water escapes the one 
 way or the other is immaterial. The question is stated thus: Can 
 the owner, with a knowledge of the penetrating character of its 
 oil, and the effects following its leakage, store large quantities of 
 it near the spring of the plaintiff, when the oil is seen in puddles 
 outside of the building, the result of leakage of the casks on the 
 inside, and resist the claim of the plaintiff on the ground that it 
 
 ^Lambert v. Betsey, Sir T. Raym. 431.
 
 278 IMPOSED DUTIES, PERSONAL, [Part II. 
 
 did not know the water was affected by it ? The injury has been 
 done, and the court rules it cannot be said that it presents a case 
 of damnum absque injuria. 
 
 The case of Ballard v. Tomlinson, L. R. 29 Ch. Div. 115, 21 
 Am. L. Reg. N. S. 631, contains what is thought to be the correct 
 rule on the subject. In that case the water in the plaintiff's well 
 was injured by sewage from the defendant's well, and it was ruled 
 that an injunction to restrain the defendant from so using his well 
 was proper, and the plaintiff was entitled also to damages for what 
 he had suffered by reason of the pollution. While the unlimited 
 rio-ht to use the percolating water was conceded to the plaintiff, 
 the right to contaminate the water so as to render it unhealthy or 
 unfit for use, when it came to his neighbor's land, was held to be 
 a violation of plaintiff's rights, for which an action could be main- 
 tained. 
 
 If one has that on his own premises that is dangerous, or 
 a substance that he is constantly using which is liable to escape 
 and harm others, and injure the property of his neighbor, whether 
 above or under the ground, or that which his neighbor has the 
 right to use, and he corrupt it, he must answer for the conse- 
 quences.' 
 
 A recovery was had against gas comjmnies in the cases of Otta- 
 wa Gas-Light Co. v. Graham, 28 111. 71:; Pottstown Gas Co. v. 
 UuriyJnj., 39 Pa. 257, and Columhus Gas-Light Co. v. Freehand, 12 
 Ohio St. 392. In the case in 28 111. 71, the gas company erected 
 works near the dwelling of Graham, and injured the water in his well 
 by permitting the substances used in its manufacture to permeate 
 the soil and find their way to plaintiff's well. The court told the 
 jury that if such substances did soak into the ground, and per- 
 meate and pass along and through the earth, mingling with the 
 water of the well, and did thereby render it nauseous to the taste, 
 or unfit for use, the jury should render a verdict for the plaintiff. 
 This branch of the instructions was held to be proper, and no 
 question raised as to the right of recovery, if the jury believed 
 the facts existed as alleged and proven. 
 
 In Pottstown Gas Co. v. Murphy the court held the company 
 answerable for the corruption of the plaintiff's well by reason of 
 ^Kinnaird v. Standard Oil Co. (Ky. Jan. 25, 1890) 7 L. R. A. 451.
 
 Ciiap. XIIL] SURFACE AND SUBTERRANEAN WATERS. 279 
 
 fluids percolating from the works. The entire dominion of the 
 defendant over its property in Kinnaird v. /Standard Oil Co., 
 ^iqyra, is not denied, but it liad no right, the court ruled, while en- 
 joying its use, although in what, under ordinary circumstances, 
 •would be a legitimate way, to violate, by the manner of its use, tlie 
 rights of others. It was declared nni-easonable to adjudge that the 
 erection and operation of gasworks, or buildings for the storage of 
 oil, with the noxious and injurious substances, by reason of the 
 dejDOsit on the surface permeating the ground, and injuring or 
 "destroj'ing the taste or use of water belonging to and on the prop- 
 erty of others, is such a legitimate use of one's property, and his 
 dominion over it, as to preclude any recover}' for an injury to the 
 proj^erty of his neighbor, however great ; and to require a notice 
 that the injury has been inflicted before the action can be main- 
 tained would, in the view of the court, be to destroy the tlieory 
 ■or principle upon which a recovery in the case is permitted. It 
 was argued that the oil company was ignorant of the existence of 
 the nuisance or injury to the spring, and had no right to suppose 
 that its oil was affecting the water in the spring of the plaintiff. 
 This may be so, it is admitted, and still the defendant is held 
 responsible for the injury, although it was not aware that its neg- 
 lect in permitting the oil to leak from the casks, and stand in 
 pools outside the building, had or would work an injury to the 
 plaintiff. If it created a nuisance, whether negligent or not, the 
 oil company is liable. 
 
 Section 25.—DisU7zcfion hetween the Rights in Sur- 
 face and Subterranean Waters. 
 
 The distinction between the rights in surface and in subter- 
 ranean waters is not founded on the fact of their location above 
 or below ground, but on the fact of knowledge, actual or reasona- 
 bly acquirable, of their existence, location, course and effect. The 
 dividing line between the right to use one's own and the duty not 
 to injure another's is one of great nicety and importance, and fre- 
 quently of difficulty. The decisions have endeavored to preserve 
 the substance of both rights as far as their sometimes inevitable 
 conflict may permit.
 
 280 IMPOSED DUTIES, PERSONAL. [Part 11. 
 
 With regard to the ponution of flowing water — surface, perco- 
 lating or in watercourses — the case of Pennsyloania Coal Co. v. 
 Sanderson., 113 Pa. 126, 4 Cent. Rep. 475, definitively settled the 
 rule, at all events, in that State, that, for unavoidable damage to 
 another's land in the lawful use of one's own, no action can be 
 maintained. The contrary rule must restrict the uses, derogate 
 from the full enjoyment and diminish the value of property. But 
 the rule does not go beyond natural use and unavoidable damage in 
 such use. It is thus clearly expressed in the opinion in the case 
 cited: "Every man has the right to the natural use and enjoyment 
 of his owm property; and if, whilst lawfully in such use and enjoy- 
 ment, without negligence or malice on his part, an unavoidable 
 loss occurs to his neighbor, it is damnum ahsque injuria." That 
 this is the rule as to surface streams is generally conceded, bat it 
 has been contended that as to subterranean waters, or at least as 
 to percolations and hidden streams, an owner was not bound to 
 pay any attention to the effect of his operations within his OMm 
 land upon the land of others. 
 
 In Wheatley v. Baugh., 25 Pa. 528, the plaintiff had a spring 
 upon his property, which he had used in his tannery for more 
 than twenty-one ^^ears, when defendant opened a mine on his ad- 
 jacent land, and put in a steam pump to take out the water, with 
 the result of drying up the plaintiff's spring. It was held that 
 plaintiff had no cause of action. This case determined the law on 
 the subject of control over percolating waters in that State as it 
 is held generally elsewhere.' 
 
 But in Delhi v. Youmans, 45 N. Y. 362, the IS'ew York court, 
 while recognizing the rule, distinguished between preventing 
 water reaching a spring and the liability for thereafter drawing it 
 away after it became part of a running stream." 
 
 ^Johnstown Cheese Mfg. Co. v. Veghte, 69 N. Y. 16; West Cumberland Iron & 
 S. Co. V. Kenyan, L. R. 11 Ch. Div. 782; Ballacorkish S. L. & C. Mm. 
 Co. V. Harrison, L. R. 5 P. C. 49; Chasemore v. RicJiards, 7 H. L. 
 Cas. 349; Taylor v. Fickas, 64 Ind. 167; Bassett v. Salisbury Mfg. Co. 43 
 N. H. 573; Chase v. Siiversione, 62 Me. 175; Frazier v. Broicn, 12 Ohio 
 St. 294; Taylor v. Welch, 6 Or. 198; Roath v. 'Driscoll, 20 Conn. 533; Hosier 
 V. Caldicell, 7 Nev. 363; Dexter v. Providence Aqueduct Co. 1 Story, 387; 
 Clark V. Conroe, 38 Vt. 469. 
 
 'See also Rawstron v. Taylor, 33 Eng. L. & Eq. 428; Broadbent v. Bamsboth- 
 am 34 Eng L. & Eq. 553; Chasemore v. Richards, 7 H. L. Cas. 319; 
 Pixley V. Clark, 35 N. Y. 520; Goodale v. Tutile, 29 N. Y. 459; Ellis v. 
 Duncan, 21 Barb. 230, affirmed 26 How. Pr. 601.
 
 Chap. XIII.] SURFACE AXD SUBTERRANEAN WATERS. 2S1 
 
 In Bliss V. Greeley, 45 N. Y. 671, where tliere was siin|)ly a 
 grant of a right to dig and stone np a certain spring to conduct 
 the water therefrom through the grantor's land, witli a covenant 
 of warranty, but no grant of any particular snpply of water from 
 the spring or from the land, it was ruled that this did not prevent 
 the grantor from sinking another spring on his land, if at some 
 distance from the one granted, although the effect of it was to 
 render the latter useless, provided the same was not done unneces- 
 sarily or maliciously. The parties were regarded in the same 
 "light as adjacent owners, and the rule was applied tliat the owner 
 might lawfully dig on her own land, though the effect of it was to 
 cut off the water from the plaintiff's spring by percolation.' 
 
 The owner of land may cut down the forest trees, and clear and 
 cultivate his land, although in so doing he may dry up the sources 
 of his neiglibor's springs or remove the natural barriers against 
 wind and storm. If, in the excavation of his land, he uncover a 
 spring of water, salt or fresh, acidulated or sweet, he will certainly 
 not be obliged to cover it again, or to conduct it out of its course, 
 lest the stream in its natural flow may reach his neighbor's land. 
 It has always been considered, certainly where the rule of the civil 
 law is recognized in regard to water, that land on a lower level 
 owes a natural servitude to that on a higher level, in respect of 
 receiving, without claim for compensation by the owner, the water 
 naturally flowing down to it;' and in sinking his well the pro- 
 prietor may intercept and appropriate the water which supplies his 
 neiglibor's well.' 
 
 '"'• Les fonds inferieurs sont assujettis, enver.'i ceux qui sont plus 
 Sieves, d recevoir les eaux qui en decoulent naturellement sans que 
 la main de Vhomvie y ait contrihueP '"'' Le proprietaire superieur 
 ne pent r^en faire qui aggrave la servitude die fonds inferi- 
 eursT^ (Inferior lands are subjected as regards those which lie 
 liigh jr to receive the waters which flow naturally therefrom to which 
 
 iSee Johmtmca Cheese Mfg. Go. v. Veghle, 69 N. Y. 16. 
 
 ^Lord V. Carbon, Iron, Mtg. Co, 42 N. J. Eq. 157. 4 Cent. Rep. 813; Penn- 
 
 sylcania Coal Co. v. Sanderson, 113 Pa. 126, 4 Cent. Rep. 475; Boyntonv. 
 
 Longley, 19 Xev. 69; Anderson v. Henderson, 124 111. 164; Jeffcrs v. Jcf- 
 
 fers, 107 N. Y. 650, 9 Cent. Rep. 875. 
 ^Frazier v. Brown, 12 Ohio Sr. 294; Routh v. Drisioll, 20 Conn. 533; Acton 
 
 V. Blundell. 12 Mees. & W. 324; Wheatley v. Baugh, 25 Pa. 528; Ualde- 
 
 man v. Bruckhart, 45 Pa. 514. 
 
 *Code Civil, liv. II. tit. IV. chap. i. art. 040.
 
 282 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 tlie "hand of man has not contributed. Tlie proprietor of the lower 
 ground cannot raise a bank which shall prevent such flowing. 
 The superior proprietor cannot do anything to increase the servi- 
 tude of tlie lower lands.) 
 
 A well sunk on adjoining premises, so near plaintiff's well as to 
 materially diminish the flow of water therefrom, will not be or- 
 dered to be closed, nor will the defendant be restrained from sink- 
 ing other wells.' 
 
 If the well of one land owner is so close to the well of his nei2:h- 
 bor as to require the support of a rib of clay or stone to his neigh- 
 bor's land to retain the water in the well, no action will lie against 
 the owner of the adjoining land for digging away such clay or 
 stone which is on his property, and thereby letting out the water.* 
 
 The doctrine announced in Wheailey v. Baugh^ supra, was 
 followed in Ilaldeman v. BrucTcJtart, 45 Pa. 514, but was restated 
 rather narrowly by Justice Strong, thus : " In that case it was 
 ruled that where a spring depends for its supply upon filtrations 
 or percolations of water through the land of an owner above, and 
 in the use of the land for mining or other lawful purposes the 
 spring is destroyed, such owner is not liable for the damages thus 
 caused to the proprietors of the spring, unless the injury was 
 occasioned by malice or negligence. To such percolations or 
 filtrations, then, the inferior owner has no right. "This was all," 
 he says, "that was necessary to the decision of the case." He then 
 criticises the rest of the opinion in Wheatley v. Baugh as dictum, 
 and formulates the rule again in the following terms : "A proj)ri- 
 etor of land may, in the proper use of his land for mining, quarry- 
 ing, draining or any other useful purpose, cut off or divert subter- 
 raneous water flowing through it to the land of his neighbor, 
 without any responsibility to that neighbor." Thesi and like 
 forcible statements of the rule are the main ground of the con- 
 tention constantly made that an owner is not bound to pay any 
 reo-ard to the effect of his operations on subterranean waters. But 
 this contention overlooks the qualification, made in all the cases, 
 that there must be no negligence, and, as is said in many cases, 
 no malice, for he who negligently or maliciously diverts or cor- 
 
 ^ Ocean Orom C. M. Asso. v. Asbury Park Comrs. 40 N. J. Eq. 447, 2 Ceat. 
 
 Rep. 180. 
 ^Pennsylvania Coal Go. v. Siinderson, 113 Pa. 126, 4 Cent. Rep. 475.
 
 Ohap. XllL] SUKFACE AND SUBTERRANEAN WATERS. 2S3 
 
 rupts a subterranean stream, whether it is distinctly defined or 
 subsists in tlie nature of percohition, so as to deprive his neighbor 
 of it, is h'able in damages.' 
 
 The opinion of Chief Justice Lewis in Wheatley v. Baxujii is as 
 a,ble, ehiborate and convincing a discussion of the sul)ject as can 
 be found reported, and in it the necessary and unavoidable char- 
 acter of the damage is explicitly insisted on. " When the titra- 
 tions are gathered into sufficient volume to have an appreciable 
 value, and to flow in a clearly defined channel, it is generally pos- 
 sible to see it, and to avoid diverting it without serious detriment 
 to the owner of the land through which it flows.' But percola- 
 tions spread in every direction through the earth, and it is impos- 
 sible to avoid disturbing them without relinquishing the necessary 
 enjoyment of the land." "The owner of a spring, although his 
 right is imperfect where the supply is derived through his neigh- 
 bor's land, has nevertheless a privilege subordinate only to the 
 paramount rights of such neigh boi-; and it is only when the fair 
 ■enjoyment of those paramount rights requires its destruction that 
 he is bound to submit to the deprivation." 
 
 And even in Haldeman v. Bruckhart, which is the most 
 strongly expi-essed of all the decisions in favor of the rights of the 
 proprietor on his own land, it is clear that the same qualification 
 is not lost sight of, although not prominently put forward, "A 
 surface stream," says Strong, Ji, " cannot be diverted without 
 knowledge that the diversion will affect a lower proprietor. JSTot 
 so with an unknown subterraneous percolation or stream. One 
 •can hardly have rights upon another's land which are impercepti- 
 ble, of which neither himself nor that other can have any knowl- 
 edge. . . . These appear to us very sufficient reasons for dis- 
 tinguishing between surface and subterraneous streams, and deny- 
 ing to inferior proprietors any right to control the flow of water 
 in unknown subterranean channels upon an adjoiner's land. They 
 
 ^Uiasemore v. Richards, 5 Hurl. & N. 990, 7 H. L. Cas. 349; Angell, Water- 
 courses, § 114; Lybe's App. 106 Pa. 626; Pennsylvania Coal Co. v. Sander- 
 son, 113 Pa. 126, 4 Cent. Rep. 475; Hetrich v. Deachler, 6 Pa. 32; Miller 
 V. Miller, 9 Pa. 74; Chesley v. King, 74 Me. 164; Phillips v. Sherman, 64 
 Me. 174; Stevens v. Kelly, 78 Me. 445, 3 New Eng. Rep. 230. 
 
 *Sce also Delhi v. Youmans, 45 N. Y. 362. As to the rights of parties when 
 the water is collected in a pond, ?ee Proprietors of Mills v. Braintree 
 Water Supply Co. 149 Mass. 478, 4 L. R. A. 272.
 
 284 IMPOSED DUTIES, PEKsUNAL. [Part II. 
 
 are as applicable to unknown sub-surface streams as they are to 
 filtrations and percolations through small interstices." 
 
 And in Ujle's App., 106 Pa. 634, it is said : " The rule is that 
 wherever the stream is so hidden in the earth that its course is not 
 discoverable from the surface, there can be no such thing as a pre- 
 scription in favor of an adjacent proprietor to have an unintei-- 
 rupted flow of such stream through the land of his neighbor."^ 
 But see DeUd v. Youmans, 45 N. Y. 362, as qualifying this when 
 the result interrupts a spring which has added its supply to a run- 
 nins stream. Where the subterranean water is not hidden, but 
 has a defined flow which is known or ascertainable, rights in it 
 will be treated on the same basis as rights in a surface stream. 
 
 It is therefore clear from the principles and the reasoning of all 
 the cases that the distinction between rights in surface and in sub- 
 terranean waters is not founded on the fact of their location above 
 or below ground, but on the fact of knowledge, actual or reason- 
 ably acquirable, of their existence, location, course and effect. 
 This is the same principle which is recognized in all well- 
 considered cases as controlling the use of water. 
 
 It was decided in Stevens v. Kelley, 78 Me. 445, 3 Kew Eng. 
 Eep. 230, that where the owner of a mill-dam maliciously and un- 
 necessarily draws the water from the pond, and thus destroys the 
 ice privilege, he is liable in damages to the owner thereof. In 
 that case it was claimed by the defendants that, having raised the 
 water, it was their privilege to lower it, but the sufficient answer 
 was that while it may be true they were under no obligation to- 
 keep up the dam any longer than their interest, or whim even, 
 might dictate, yet, as the dam was not abandoned, but was kept 
 up, and, by an affirmative act on the part of the defendants, the 
 water was drawn off when it was of no use to them, but a serious 
 injury to the plaintiff, that this cannot be said to be consistent 
 witli their qualified right to the use of the water, and the reason- 
 able care which they are legally bound to exercise in that use. It 
 is rather a wanton use, a disregard of the rights of others, which 
 the law condemns, and which the writ alleges to be malicious, and 
 for the purpose of injuring the plaintiff. And reference is made 
 to Phillips v. Sherman, 64 Me. 174, in which it is said; "A 
 
 J WMstone v. Bowser, 29 Pa. 59.
 
 Chap. XIII.] SUKFACE AND SUBTERRANEAN WATERS. 285 
 
 wanton, or vexations, or nnnecessary detention wonld render tlie 
 mill owner so detaining liable to damages to those injnred by such 
 nnlawful detention." x\nd it i? held that if the owner of the dam 
 has no right unreasonably to detain the water, for the same reason 
 he would have no right wantonly to accelerate it to the injury of 
 owners above or below, and the case of Frye v. Moor, 53 Me. 583, 
 is cited, where it was held that where water is accumulated wrong- 
 fully, the party so doing, in letting it out, must do so at his peril. 
 And it was said that in this case, so far as appears, the defendants 
 had the right to flow the water for their mill only. It was not 
 raised for that purpose, for the mill was not used ; nor does it 
 appear for what purpose it was raised, except, as alleged in the 
 writ, to injure the plaintiff. Eeference is also made to the case 
 of Chedey v. King, 71 Me. 1G4, in which the court consider the 
 principle involved substantially like that in the case before them, 
 and it is certainly the pi'inciple involved in the present examina- 
 tion. There the defendant, in digging a well upon his own land, 
 destroyed the plaintiff's spring by drawing from it the water which 
 percolated through the earth and thus supplied the spring. In 
 that case it was held, after much consideration and a careful re- 
 view of the autliorities, that the defendant, though he was in the 
 exercise of a right, and would not be liable to an action so long as 
 he acted in good faith and with an honest purpose, would yet be 
 liable if he dug the well for the sole purpose of inflicting damage 
 upon the party who had rights in the spring. In Stevens v. Kelly, 
 stujjra, the case, it was said, would seem to be a stronger one for 
 the plaintiff, as the defendants had only a qualified interest in tlie 
 water — a right to use it for a specified jDurpose ou\y — and in that 
 use were bound to exercise due care in resfard to the rights of oth- 
 ers; yet, in the act complained of, they were not in tlie use of the 
 water for their own legal purposes, ''nor were they in the exercise 
 of due care, by which an injury happened to the plaintiff.'" 
 
 The principle of all these cases is precisely the same as that of 
 
 Wheatley v. Baugh, and is of general application. It is that the 
 
 use which inflicts the damage must be natural, proper and free from 
 
 negligence, and the damage unavoidable. On the question of 
 
 negligence the question of knowledge is always important and 
 
 'See also Bliss v. Greeky, 45 N. Y. 671.
 
 286 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 may be conclusive. Hence tlie practical inquiry is, first, whether 
 the damao-e was necessary and unavoidable ; secondly, If not, 
 w\as it sufficiently obvious to have been foreseen, and also pre- 
 ventable by reasonable care and expenditure ? 
 
 In Pennsylvania Coal Co. v. Sanderson the damage was una- 
 voidable. In Wheatley v. Baugh it was not ascertainable before- 
 hand. Hence the plaintiff had no cause of action in either case. 
 Later cases following Wheatley v. Baugh have held that injury to 
 springs, wells, etc., supplied by mere percolation, was not action- 
 able, and the reason has always been the same, that the damage 
 could not be foreseen or avoided. If the boundaries of knowledge 
 have been so enlarged as to make an end of the reason, then ces- 
 sante ratione, cessat ipsa lex. 
 
 Geology is a progressive, and now in many respects a practical^ 
 science; and it is said in Collins y. Chartiers Valley Gas Co., 131 
 Pa. 143, 6 L. R. A. 280, that, since the decisions in Acton v. 
 Blundell, 12 Mees. & W. 324, and Wheatley v. Baugh^ 25 Pa. 
 528, probably more deep wells have been drilled in Western 
 Pennsylvania than had previously been dug in the entire earth in 
 all time, and, as is well known, the Central States are as well deeply 
 concerned in the settlement of the question. And it was also said in 
 that case that much w^hich was then held to be necessarily un- 
 known or merely speculative, as to the flow of water under ground, 
 has been by experience reduced almost to a certainty. If this is 
 the state of knowledge at the present day, — if the existence of a 
 stratum of clear water and its flow into wells and springs of the 
 vicinity, and the existence of a separate and deeper stratum of 
 salt water which is likely to rise and mingle with the fresh when 
 penetrated in boring for oil or gas, are known, and the means of 
 preventing the mixing are available at reasonable expense, — then 
 clearly it would be a violation of the living spirit of the law not 
 to recoo-nize the change and apply the settled and immutable 
 principles of the common law, even where the civil law in the 
 matter of water rights prevails, and adjust the scale of justice to the 
 altered conditions of fact. Negligence in this sense is the absence 
 of sucli care and regard for the rights of others as a prudent and 
 just man would and should have in the same situation. If the 
 plaintiff in any given case can show that the injury was plainly to
 
 Cliap. XIIL] SURFACE AND SUBTERRANEAN WATERS. 287 
 
 be anticipated, and easily preventable with reasonable care and 
 expense, he brings himself within the exception of all the cases 
 placed npon these principles. Accordingly, it was held in Collins 
 V. Chartiers Yalleij Gas Co., 131 Pa. 143, 6 L. R A. 280, that 
 damages for injuries to wells of clear fresh water by the rising 
 and mixing therewith of salt water from a lower stratum, caused 
 by boring for gas or oil, may be recovered from the party boring, 
 if he knew or ought to have known of the existence of the stratum 
 of fresh water, and of the deeper stratum of salt water, as well as 
 of the fact that drilling through them would almost inevitably 
 mix the two, and could, at a reasonable expense, have shut off the 
 salt water from the fresh and thus prevented the injury. 
 
 There is a distinction between the diversion of streams and the 
 corrupting of them, whether surface or subterranean, and whether 
 known and detined, or unknown and subsisting as percolations, 
 and greater care must be exercised to prevent the corruption of 
 waters than the diverting of them.' There is a well-known line 
 of cases which decide that a stream of water may not be fouled, 
 by the introduction into it of any foreign substance, to the dam- 
 age and injury of the lower riparian owners.^ Negligence in per- 
 mitting the escape of any health-destroying filth upon the prem- 
 ises of a neighbor will afford a ground, either for injunction, or 
 an action for damages,' although the noxious matter is carried on 
 the neighbor' sproperty by the ordinary operation of natural laws.* 
 Whatever renders the water less fit for the ordinary uses of life, 
 
 ^HodqTcinsnn v. Ennor, 4 Best & S. 229; Frazier v. Broxcn, 12 Ohio St. 294, 
 3i2, 3 Am. L. Reg. N. S. 240, note, as stated in Angell on Watercourses' 
 114 J; Tenant v. Goldwin, 2 Ld. Kaym. 1089, 1 Salk. 21, 360, 6 Mod 31 1' 
 Holt, 500. 
 
 ^Creighton v. Kaweah Canal (& I. Co. 67 Cal. 221; Vandenburgh v. Van Ber- 
 gen, 13 Johns. 212; Buddington v. Bradley. 10 Conn. 213; Einbrey v. 
 Owen, 6 Exch. 370; Jlonsee v. Hammond, 39 Barb. 89; Sackrider v. Beer.'i 
 10 Johns. 241; WIuttierY. Cocheco Mfg. Co. 9 N. H. 454; Blanchard v! 
 Baker, 8 Greenl. 253; Howell y. McCoy, 3 Rawle. 256; Barclay v. C'm- 
 monicealth, 25 Pa. 503; Corning v. Troy Iron & N. Factory, 34 Barb. A'S'y, 
 McCalliim v. Germantown Water Co. 54 Pa. 40; Mason v. Hill, 5 Barn. ^ 
 Ad. 1; Puley v. Clark, 32 Barb. 2G8; Davis v. Fuller, 12 Vt. 178; Woodv. 
 Sutcliffe, 16 Jur. 75; Wood v. Waud, 3 Exch. 748; Tipping v. St. Helen' h 
 Smelting Co. 4 Best & S. 608, 11 H. L. Cas. 642; Chaseuwre v. RichardK, 2 
 Hurl. &N. 168, 7 H. L. Cas. 349; Hendricks v. Johnson, 6 Port. (Ala.) 
 472; Webster v. Fleming, 2 Humph. 518. 
 
 'Baugh's Appeal, 102 Pa. 42. 
 
 *Brown v. Illius, 27 Conn. 84; Vedderv. Vedder, 1 Denio, 257; Seaman v 
 Lee, lOHuu, 007.
 
 288 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 or makes it distasteful or unwholesome, or abhorrent to the senses 
 or unfit for manufacturing purposes, will be held as coming with- 
 in the offense of corrupting the water.' But the right to con- 
 taminate the water for any useful purpose or as an outlet for sew- 
 ers may be acquired by easement," or by deed or license.' 
 
 The rule may be stated broadly, tliat it is a neglect of an im- 
 posed duty to permit impure, filthy or corruj^ted water to perco- 
 late or filter through the soil into the land of a contiguous pro- 
 prietor to the injury of his well, spring, grounds or buildings, or 
 for such fluid to thus pass from his land as surface water, when 
 he is responsible for its condition. If this happen continuously, 
 with his knowledge of the fact, it will furnish ground for an ac- 
 tion for the injury and often for an injunction.'' In the absence 
 of knowledge it would seem the duty of a man to keep the obnox- 
 ious matter on his own premises, as he is required to keep any 
 other dangerous or disagreeable substance, or prevent the escape 
 of noxious odors to the injury of his neighbors.* It is true that 
 the upper riparian owner has the right to the use of the stream on 
 his land for any legal purpose, but this right of use is coupled with 
 the condition that he return it to its channel uncorrupted and 
 without any essential diminution, and in all such cases the size and 
 capacity of the stream are to be considered.' Under a Code au- 
 
 ^Sanderson v. Pennsyhania Coal Co. 86 Pa. 401,27 Am. Rep. 711; Robinson 
 V. Black Diamond Coal Co. 57Cal. 412, 40 Am. Rep. 118; Red River Mills 
 V. Wricjht, 30 Minn. 249, 44 Am. Rep. 194; Ooldsmid v. Tunbridge Wells 
 Imp. Gomrs. L. R. 1 Ch. App. 349; Woodyear v. Scliaefer, 57 Md. 1, 40 
 Am. Rep. 419; Butterfoss v. State, 40 N. J. Eq. 325; State v. Buckman, 
 8N. H. 203, 29 Am. Dec. 646; Hamilton v. Columbus, 52 Ga. 435; Car- 
 hart V. Auburn Gas Light Co. 22 Barb. 297; Norton v. Scholefield, 9 Maes. 
 «fe W. 665. 
 
 ^Hayes v. Waldron, 44 N. H. 585; Merrifield v. Lombard, 13 Allen, 16. 
 
 ^Carlyon v. Lovering, 1 Hurl. & N. 784; Sealing v. Saratoga Springs, 39 
 Hun, 307. 
 
 *Stanchfield v. Newton, 142 Mass. 110, 2 New Eng. Rep. 526; Wilson v. New 
 Bedford, 108 Mass. 261; Ball v. Nye, 99 Mass. 582, 584; Goodrich v. Bur- 
 bank, 97 Mass. 22; Gould, Waters, § 288; Hodgkinson v. Ennor, 4 Best & 
 S. 229; RaugKs Appeal, 102 Pa. 42; Frazier v. Brown, 12 Ohio St. 312; 
 Embreyv. Owen, 6 Exch. 353; Smith v. Kenrick, 7 C. B. 515; Wood v. 
 Waud 3 Exch. 748; BairdY. Williamson, 15 C. B. N. S. 376; Tenants 
 Goldwin, 6 Mod. 311, 2 Ld. Raym. 1089; Washb. Easem. (4th ed.) 489. 
 
 f'Kinnaird v. Standard Oil Co. (Ky. Jan. 25, 1890) 7 L. R. A. 451 ; Gould, 
 Waters, §288; PtfWstoMft G'as Co. v. Murphy, 39 Pa. 257; Decatur Gas 
 Light & C. Co. V. Howell, 92111. 19; Wahle v. Reinbach, 76 111. 322; Jacobs 
 V. Worrell, 15 Leg. Int. 139; Tenant v. Goldwin, 6 Mod. 311, 2 Ld. 
 Raym. 1089. 
 
 ^Wheatley v. C/imman, 24 Pa. 298; PennsyZoanm ij. Co. v. Miller, 112 Pa. 
 34, 3 Cent. Rep. 127.
 
 Chap. XIII.] DUTY OF MUNICIPAL COKPORATIONS. 2S9 
 
 thorizing use for mines, an upper owner has no right to polhite or 
 adulterate the water so as to render it unfit for use by a lower 
 owner ; and the fact that tlie water of a certain stream is more 
 useful to certain upper owners for the purpose of washing ore 
 than it is to a lower owner for agricultural or domestic purposes is 
 immaterial.' Under a statute providing that no person should be 
 allowed to flood the property of another with water, or to wash 
 down the tailings of his sluice upon the propert}'^ of another, the 
 practice of miners to dump their tailings upon their own ground 
 and let them care for themselves cannot be justitied, as to any 
 person injured thereby, by any custom, without evidence to show 
 that the injured person consented to the commission of such act.'^ 
 In Carliart Y.Auhurn Gas Light Co., 22 Barb. 297, the gas 
 compau}' was held liable for the corruption of the water of a river 
 by percolation through the soil of noxious substances, whereby a 
 lot of the proprietor lying along the river was injured ; but in 
 Brown V. Illius, 27 Conn. S4-, the court held that, unless the one 
 who placed the substance upon his soil acted from malice, he 
 would not be liable, where his neighbor was injured through poi- 
 sonous substances affecting the sul)terraneous currents; M'hereas, 
 if they passed along the surface of the ground by surface flow, or 
 were diffused under the surface naturally, it would render him 
 liable. 
 
 Section ^G.—Duty of Municipal Corporations, as 
 Owners of Streets, Alleys and Parks, not to 
 Cast the Filth of Their Sewers upon Other 
 Lands. 
 
 A municipal corporation has the same duty imposed upon it, as 
 owner of the streets, alleys, parks, sewers and public buildings 
 in the city, charged with the duty of making and maintaining 
 them in a reasonably convenient condition for use, and for the 
 safety, not only of travelers, but of adjoining proprietors, that 
 rests upon individual land owners, or those occupying land, with 
 respect to the public generally, and adjoining proprietors to whom 
 
 ^Satterfield v. Rowan, 83 Ga. 187. 
 ^Fuller V. Swan River Placer Min. Co. 13 Colo. 12. 
 19
 
 290 IMPOSED DUTIES, PERSONAL. [Fart IL 
 
 they owe a special duty, to avoid permitting dangerous, poison- 
 ous or corrupt matter, created or collected by tliera upon their 
 own premises, to pass or be cast upon the premises of another.' 
 If a municipal corporation, by its system of constructing sewers,^ 
 renders an outlet necessary, it must provide one.'' It incurs a 
 duty, having created the necessity for an outlet and having the 
 power to secure one, of adopting and executing such measures as 
 will prevent a nuisance and obviate damage.^ 
 
 In Chapman v. Rochester, 110 N. Y. 273, 1 L. R. A. 296, the 
 plaintiff was the owner and occupant of certain premises, contain- 
 ing more than four acres of land, in the Town of Brighton, adjoining 
 the City of Rochester, and watered by a stream known as "Thomas 
 Creek," which, rising in that city and fed by springs of pure 
 water, ran northwardly and across the plaintiff's premises into 
 Irondequoit Bay. He collected its water into an artificial basin, 
 making it serve as well for domestic uses as the propagation of fislij 
 and from it in the winter season he also procured a supply of ice. 
 The defendant thereafter constructed sewers, and through them 
 discharged, not only surface water, but the "sewage from houses 
 and the contents of a large number of water-closets," into Thomas 
 Creek above the plaintiff's land. Math such effect as to render its 
 water unfit for use and cover its banks with filthy and unwhole- 
 some sediment. These and other facts, it was held, warranted the 
 conclusion of the trial court that the act of the defendant in thus 
 emptying its sewers constituted an offensive and dangerous nui- 
 sance, and that, as the plaintiff was found to have sustained a special 
 injury to his health and property from the same cause, he was en- 
 titled, not only to compensation for damages thereby occasioned^ 
 
 ^Parks V. Newburyport, 10 Gray, 28; Flngg v. Wi>rceder, 13 Gray, 603; Me- 
 chanicsburg v. Meredith, 54 III. 84; People v. Brooklyn, 65 N. Y. 349; Fre- 
 mont, E. & M. V. R. Co. V. Marley, 25 Neb. 138; Sullivan v. Phillips, 110 
 Ind. 320; BychUcki v. St. Louis, 98 Mo. 497. 4 L. R. A. 594; CraUrce v. 
 Baker, 75 Ala. 91; Olson v. St. Paul, M. & M. B. Co. 38 Minn. 419; Oil- 
 lison V. CharUston, 16 W. Va. 283, 37 Am. Rep. 763; Field v. West Or- 
 ange, 39 N. J. Eq. 60; Nevins v. Peoria, 41 111. 502; Bastable v. Syracuse, 
 72 N. Y. 64; Hitchins v. Frostburg, 68 Md. 100, 6 Am. St. Rep. 422. 
 
 ^Ellis V. Iowa City, 29 Iowa, 229; McGregor v. Boyle, 34 Iowa, 268; Evamville 
 V. Decker, ii4: Ind. 325; Crawfordsville v. Bond, 96 Ind. 236; Van Pelt v. 
 Davenport, 42 Iowa, 308; Aurora v. Love, 93 111. 521; Indianapolis v. 
 Lawyer, 38 Ind. 348; Ft. Wayne v. Coombs, 107 Ind. 75, 5 West. Rep. 
 229; Byrnes v. Cohoes, 67 N. Y. 204. 
 
 ^Phinizy v. Augusta, 47 Ga. 263: Byrnes v. Cohoes, 67 N. Y. 204; Seifert v. 
 Brooklyn, 101 N. Y. 136, 2 Cent. Rep. 135.
 
 Chap, XIII.] DUTY OF MUNICIPAL CORPORATIONS. 291 
 
 but also to such a judgment as would prevent the furtlier perpetra- 
 tion of the wrong complained of.' In tliat case tlie tilth of the 
 city did not flow naturally to the lands of tlie plaintiff, as surface 
 water finds its level, but was carried thither by artificial arrange- 
 ments prepared by the city, and for this it was responsible, and it is 
 said that the case comes within the general rule which gives to a 
 . person injured by the pollution of air or water, to tlie use of which 
 in its natural condition he is entitled, an action against the party, 
 whether it be a natural person or a corporation, who causes that 
 pollution. For it is settled law that every owner of land through 
 which a stream of water flows or on which a spring, pond or lake 
 is located, is entitled to the use and enjoyment of the water, and 
 to have the same flow in its accustomed and natural course, or re- 
 main in its natural condition, without obstruction, diversion or 
 corruption; and this right extends to the quality as well as the 
 quantity of the water." The pollution of water or the mainte- 
 nance of dams, drains or ditches, in such a way as to emit disa- 
 greeable or unwholesome odors, is an actionable nuisance, for 
 which a remedy exists in favor of any person who is injuriously 
 affected thereby.' The corruption or pollution of water by the 
 discharge into it of sewage, or by the use of it for mechanical or 
 manufacturing purposes, is a nuisance.* Unquestionably the flood- 
 ing of land with sewage, so as to create a nuisance thereon and 
 impair its usefulness, is a taking of it for public use, without com- 
 pensation.* A city has no right to discharge the public sewers 
 
 ' See Goldsmid v. Turibridge Wells Imp. Comrs. L. R. 1 Eq. 161 L R 1 Ch 
 App. 349. ^ . • • 
 
 2 Wood. Nuis. § 677; Oladfelter v. Walker, AOMdA; Wood v. Suicliffe 2 Sim 
 N. S. 163, 8 Eiig. L. & Eq. 217; Stockport Waterworks Co. v. Potter 7 
 Hurl. & N. 159; Wood^ear v. Schacfer, 57 Md. 1, 40 Am. Rep 
 419; Eolsman v. Boiling Spring Bleach. Co. 14 N. J. Eq. 335; Ridi 
 mond Mfg. Co. v. Atlantic Be Laine Co. 10 R. I. 116, 14 Am. Rep 
 
 75 
 T. JSunnemacher. 36 Wis. 56: McQ 
 ness V. Adriatic Mills, 116 Mass. 177. 
 
 ^Francis v. Schoellkopf, 53 N. Y. 154; Wesson v. Was?tburn Iron Co. 13 Allen, 95. 
 
 *Qolds-nud V. Tunbridge Wells Imp. Comrs. L. R. 1 Cb. App. 349; Smit/i, v. Mc- 
 Conathy. 11 Mo. 517; Lewis v. Stein, 16 Ala. 214; liowell \. M'Cov 3 
 Rawle, 256. "' 
 
 20 L. ed. 557; O'Brien v. St. Paul, 1« Minn. 176; Columbus v. Hudraulic 
 Woolen Mills Co. 33 Ind. 435.
 
 292 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 into a private watercourse.' And it is immaterial, as affecting 
 the liability of the city, whether the contents of the sewer are dis- 
 charged directly on the property of an individual or at sneh a 
 point that the sewage and other refuse taken along with it must 
 necessarily be carried there by a conduit or gravitation.^ If a 
 culvert is dug across a street, whereby the surface water from 
 the lands of adjacant proprietors is gathered, charged with the 
 filth of sinks, and thrown upon the land of another, producing 
 noxious scents and sickness, and rendering the enjoyment of the 
 property impossible, the city will be liable for damages.* A munic- 
 ipal corporation has no right to collect the sewage of a large por- 
 tion of a city and by artificial channels cast it upon the lands of 
 another; and for such acts it is liable in damages whether or not 
 they be done in conformity to a plan adopted by its officers, judi- 
 cially or otherwise.* A sewer or culvert debouching upon private 
 estates is a nuisance,^ and a municipal corporation cannot with 
 impunity create a public or private nuisance.' So, town commis- 
 sioners of an incorporated town have no power to legalize a nui- 
 sance unless specially authorized so to do by Act of the Legisla- 
 
 ^ Locks & Canals v. Lowell, 7 Gray, 233; Columbus v. Hydraulic Woolen Mills 
 Co. 33 Ind. 485; O'Brien v. St.. Paul, 18 Minn. 17G; Cone v. Hartford, 28 
 Conn. 363; Atty-Oen. v. Birmingham, 4 Kay & ,J. 528; Be Rhinelander, 68 
 N. Y. 105; Peoples. Haines, 49 N. Y. 587; Merrifield v. Worcester, 110 
 Mass. 216. 
 
 ^Sleight V. Kingston, 11 Hun, 594; Moran v. McLearns, 63 Barb. 185; Wood- 
 ward V. Worcester, 121 Mass. 245; Jacksonville v. Ijimhert, 62 111. 519; 
 Aurora v. Beed, 57 111. 29; Inman v. Tripp, 11 R. I. 530; Clark v. Peck- 
 ham, 9 R. I. 455; Pettigrew v. Evansville, 25 Wis. 236; Hendershott v. Ot- 
 tumwa, 46 Iowa, 658. 
 
 *Smith V. Atlanta, 75 Ga. 110. 
 
 *0'Brien v. St. Paul, 18 Minn. 176; Monan v. Albany, 79 N. Y. 475, 476; 
 Bi/r)ies V. Cohoes, 67 N. Y. 204; Puchardson v. Boston, 60 U. S. 19 How. 
 263, 15 L. ed. 639; Sleight v. Kingston, 11 Hun, 594: Barton v. Syracuse, 
 36 ir. Y. 54; Bastable v. Syracuse, 8 Hun, 587; Beach v. Elmira, 23 Hun, 
 158; Rochester White Lead Co. y. Rochester, 3 N. Y. 466; Perry y. Worces- 
 ter 6 Gray, 544; Ashley v. Port Huron, 35 Mich. 296; Story v. New York 
 Elevated R. Co. 90 N. Y, 122; Seifert v. Brooklyn, 101 N. Y. 136, 2 Cent. 
 Rep. 135; Lehn v. San Francisco, 66 Cal. 76; Taylor v. Austin, 32 Minn. 
 247. 
 
 iJSfoonan v. Albany, 79 N. Y. 470; Byrnes v. Cohoes, 67 N. Y. 204; Sleight v. 
 Kingston 11 Hun, 594; Beach v. Elmira, 22 Hun, 158; Seifert y. Brook- 
 lyn, 101 N. Y. 136, 2 Cent. Rep. 135. 
 
 *Nichols V. Boston, 98 Mass. 39; Haskell v. New Bedford, 108 Mass. 208; 
 Mootry v Banbury, 45 Conn. 550; Nevins v. Peoria, 41 111. 504; Jackson- 
 ville V. Lambert. 62 111. 519; Babcock v. Buffalo, 1 Sbeld. 117, 56 N. Y. 268; 
 Francis v. Slwellkopf, 53 N. Y. 152; Jutte v. Hughes, 67 N. Y. 268; Frank- 
 lin Wharf Co. v. Portland, 67 Me. 46; Batkurst v. Macplierson, L. R. 4 App. 
 Cas. 256.
 
 Chap. XIII.] INJUNCTION TO PREVENT POLLUTION. 203 
 
 ture.' A municipality changing the grade in rebuilding the out- 
 let of a street sewer, and negligently raising it above tliat of the 
 sewer, thereby causing the discharge of sewage upon private 
 premises, is liable,^ and where the city empties one of its sewers 
 on the plaintiff's lands, no matter under what mistake, pretense 
 or asserted authority, it is a direct violation of his rights, a con- 
 tinual trespass on his property, and the city is liable, just as any 
 private person would be.^ In Canada, where a drain was so un- 
 skillfully constructed by the corporation contractors as not to car- 
 ry oli water, but to carr}- filth from the main sewer into plaintiff's 
 cellar, which for months he had endured, it was held that he was 
 entitled to sue the corporation for the recovery of substantial 
 damages, though no by-law for the making of the drain was 
 proved.* But M'here nothing but express statutory liability is 
 recognized, as in Massachusetts, there is considered to be no lia- 
 bility on the part of a city for failing to keep a public cesspool 
 and sewer in repair, in consequence of which waste water accumu- 
 lates and flows into neighboring cellars not connected with, the 
 sewer." 
 
 Section ^"J.— Injunction to Prevent Pollution of 
 
 Waters. 
 
 "When equity is asked to enjoin the pollution of a stream, or to 
 give relief in like cases, it must have regard not only to the dry, 
 strict rights of the parties, but also to the surrounding circum- 
 stances, and to the relative injury which may be sustained by the 
 parties in granting or refusing relief." Thus an immaterial in- 
 jury to a lower riparian owner by the pollution of water of a 
 stream is no canse for injunction against the washing of ore by an 
 upper owner causing such pollution.^ A man who has bought 
 
 estate V. Luce (Del. Oct. Term, 1885) 6 Cent. Rep. 863. 
 
 ^Befer v. Detroit (Mich. Oct. 20, 1887) 11 West. Rep. 530. 
 
 ^Beachv. Elmim, 22 Hun, 158; Bradt v. Albany, 5 Hun, 591; B>/rne.<i v. Co- 
 hoes, 5 Hun, 602, affirmed, 67 iST. Y. 204, 207; Seiftvt v. Brooklyn, 101 N. 
 Y. 136, 2 Cent. Rep. 135. 
 
 ^Reeves v. Toronto, 21 U. C. Q. B. 160. But see Gilman v. Laconia, 55 N. H. 
 130, 20 Am. Rep. 175. 
 
 ^Barry v.Lotcell, 8 Allen, 127; 2 Dillon, Mun. Corp. 936. 
 
 6 ''Clifton Iron Co. v. Bye, 87 Ala. 468; Penmylmnia Coal Co. v. Sanderson 
 113 Pa. 126, 4 Cent, Rep. 475.
 
 294 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 land through which runs a small stream, knowing that tanneries, 
 which constitute the principal business of the village where it is 
 situated, have long been established on its banks, from which cer- 
 tain noxious substances have been cast into the stream, cannot 
 obtain an injunction against such pollution of the water, 
 without showing that he is thereby deprived of its use, or that it 
 is thereby made dangerous to health by the offensive smell ema- 
 nating therefrom. He cannot complain on the ground that it is 
 thereby rendered unfit for culinary purposes, where it has never 
 been so used, and would be unfit therefor if the tanneries were 
 removed; or on the ground that it destroys the use of the stream 
 for watering cattle, when he has no cattle to water, although there 
 are owners on the stream who do use the stream for waterinof cat- 
 tie.* The lower owner who allows an upper mine owner to pol- 
 lute the stream by the operation of a washer for three years be- 
 fore he attempts to prevent him, and has known of the investment 
 of capital in such way, is too late to enjoin the upper owner from 
 so doing; he must bring his suit at law for damages, if entitled to 
 any." In Satterfield v. Rowan, 83 Ga. 187, it was held that where 
 the pollution of a stream by an upper owner is continuous, the rule 
 that one who takes no steps to avoid the consequences of another's 
 negligence cannot recover damages therefor has no application, as 
 such pollution is not a case of mere negligence, but a continued 
 tortious act. 
 
 Section 28. — Right of Land Owner to Control Mere 
 Surface Waters or Superficially Percolating 
 Waters. 
 
 The general common-law rule is that the right of an owner of 
 land to occupy and improve it in such manner and for such pur- 
 poses as he may see fit, either by changing the surface or tlie erec- 
 tion of buildings or other structures thereon, is not restricted or 
 modified by the fact that his own land is so situated, with reference 
 to that of adjoining owners, that an alteration in the mode of its 
 improvement or occupation in any portion of it will cause water, 
 
 ^Claude v. Weir (Q. B.) 4 Montreal L. Rep. 197. 
 
 ^Clifton Iron Go. v. Dye, 87 Ala. 468; Pennsylvania Coal Co. v. Sanderson, 
 113 Pa. 136, 4 Cent. Rep. 475.
 
 Chap. Xlll.] RIGHT OF LAND OWNER TO CONTROL WATERS. 205 
 
 which may accumulate thereon by raius and snows falhng on its 
 surface or flowing on to it over the surface of adjacent lots, either 
 to stand in unusual quantities on other adjacent lands or pass into 
 and over the same in greater quantities or in other directions than 
 they were accustomed to flow.' 
 
 "Surface water" is defined as that which is difliused over the 
 surface of the ground, derived from falling rains and melting 
 snows, and continues to be such until it reaches some well-defined 
 channel in which it is accustomed to and does flow with other 
 waters, whether derived from surface or springs.' 
 
 By the civil law, the lower of two adjacent estates owes a serv- 
 itude to the upper to receive all the natural drainage ; and the 
 lower owner cannot reject, nor can the upper withhold, the supply, 
 although either, for the sake of improving his land, according to 
 the ordinary modes of good husbandry, may somewhat interfere 
 with the natural flow of the water.* 
 
 The owner of higher land has the right to have surface water 
 pass off through natural drains through servient lands.* But he 
 
 ^Gannon v. Hargadon, 10 Allen, 106, 109; Keith v. Brockton, 186 Mass. 
 
 119; Jordan v. St. Paul, M. & M. R. Co. (Minn. Dec. 9. 1889) 6 L. 
 
 R. A. 573; Buffum v. Harris, 5 R. I. 243; Parks v. Neiobuniport, 
 
 10 Gray, 28; Bm-kleij v. Wilcox, 86 N. Y. 140; Bowlsby v. Speer, 31 N. 
 
 J. L. 351; Ho}ft v. Hudson, 27 Wis. 656; Swett v. Gatts, 50 N. H. 439; 
 
 Robinson v. Shanks, 118 lad. 125; Ratlike v. Gardner, 134 Mass. 14; 
 
 Cairo & V. R. Co. v. Stevens, 73 Ind. 279; Atchison, T. & 8. F. R. Co. 
 
 V. Hammer, 22 Kan. 763; Gibbs v. Williams, 25 Kan. 214; Morrison 
 
 V. Bmksport & B. R. Go. 67 Me. 353; Murphy v. Kelley, 68 Me. 521; 
 
 Drake v. Chicago, R. I. & P. R. Co. 70 Iowa, 59, per Seevers, J.; 
 
 Abbott V. Kansas City, St. J. & C. B. R. Co. 83 Mo. 271; Livingston v. 
 
 McDonald, 21 Iowa, 160; Martin v. Benoist, 20 Mo. App. 263, 3 West. 
 
 Rep. 541. 
 ^Crawford v. Rambo, 44 Ohio St. 279, 4 West. Rep. 446. 
 ^Beard v. Marpliy, 37 Vt. 104; Martin v. Jett, 12 La. 501; Lattimore 
 
 V. Davis, 14 La. 161; Hays v. Hays, 19 La. 351; Adams v. Harrison, 
 
 4 La. Ann. 165; Delahoussaye v. Judice, 13 La. Ann. 587; Hooper v. 
 
 Wilkinson, 15 La. Ann. 497; Barrow v. Laundry, Id. 681; Minor 
 
 V. Wright, 16 La. Ann. 151; Gillis v. Nelson, Id. 275; Bowman v. 
 
 New Orleans, 27 La. Ann. 502; Penn.iylvania Coal Co. v. Sanderson, 113 
 
 126, 4 Cent. Rep. 475; Lord v. Carbon Iron Mfg. Go. 43 N. J. Eq. 157, 4 
 
 Cent. Uep. 853; Kauffman v. Griesemer, 26 Pa. 415, note; Miller v. 
 
 Laiibach, 47 Pa. 147; Anderson v. Henderson, 124111. 164, 14 West. Rep. 
 
 109; Boynton v. Longley, 19 Nev. 69; Hays v. Hinkleman, 68 Pa. 324; 
 
 Bentz V. Armstrong, 8 Watts & S. 40; Butler v. Peck, 16 Ohio St. 334- 
 
 Tootle V. Clifton, 23 Ohio St. 247;Gillham v. Madison Co. R. Co. 49 111. 484; 
 * Gormley v. Sanford, 53 111. 159; Hicks v. SiUiman, 93 111. 255; 
 
 Overton v. Sawyer, 1 Jones, L. 308; Porter v. Durham, 74 N. C. 767; 
 
 Goldsmith v. Elsas, 53 Ga. 186. 
 *Anderson v. Henderson, 124 111. 164, 14 West. Rep. 109.
 
 296 IMPOSED DUTIES, PEKSONAL, [Part II. 
 
 cannot remove natural barriers and let upon the lower land water 
 that would not naturally flow in that direction/ 
 
 The rule of the common law is accepted in England, Massa- 
 chusetts, Maine, New Hampshire, Vermont, New York, Khode 
 Island, New Jersey, Indiana, Iowa, Kansas, Wisconsin, Missouri 
 and Minnesota, that a land owner may appropriate to his own use 
 or expel from his land all mere surface water or superficially 
 percolating waters, and any person from whose land it is with- 
 held or whose water supply is depleted, will, in the absence of an 
 express grant, have no right of action for such diversion or ob- 
 struction.^ In the absence of an agreement and assertion of abso- 
 lute right, no length of time creates any easement by which the 
 owner of lower land is prevented from using his lands as he sees 
 fit, although such use as he puts them to lessens the facilities for 
 surface drainage of an adjacent owner, so long as the lower pro- 
 prietor erects no barriers to the free and full flow of the surface 
 waters.^ So an owner of land may erect structures upon it of any 
 size, height or depth, irrespective of their effect upon mere sui'face 
 water or the natural drainage/ And so a man has a right to 
 cultivate his land in the usual and reasonable way, as well upon a 
 hill as in the plain, and cannot be i-estrained from doing so because 
 a mill-pond below may be injured by the washing down of the soil/ 
 And a land owner may change the grade of its surface, and if, in 
 the absence of grant, prescription or mutual stipulation, mere 
 surface water or the natural drainage is displaced, obstructed or 
 caused to accumulate upon adjoining land, or upon a street or 
 highway, no right of action arises, and this rule prevails generally 
 where the common-law doctrine is recognized/ And whether 
 
 ^Anderson v. Henderson, 124 111. 164, 14 West. Rep. 109. 
 
 ^Greatrex v. Hayicard, 8 Exch. 291; Wood v. Wdud, 3 Exch. 748; Broad- 
 lent V. Rmnsbotham, 11 Exch. 603; Rawstron v. Taylor, Id. 369; Barkley 
 V. Wilcox, 86 N. Y. 140; Buff urn v. Harris, 5 R. I. 243; Chatfield v. Wil- 
 son, 28 Vt. 49, and authorities cited first ante, p. 295, note 1. 
 
 ^White V. SMdon (Sup. Ct. Dec. 30, 1889) 28 N. Y. S. R. 475. 
 
 *Parks V. Newburyport, 10 Gray, 28; Bates v. Smith, 103 Mass. 181; 
 Boiclsby V. Speer, 31 N. J. L. 351; Gannon v. Hargadon, 10 Allen, 106. 
 
 ^Middlesex Co. v, McCue, 149 Mass. 103. 
 
 ^Raiostron v. Taylor, 11 Exch. 369; Gannon v. Hargadon, 10 Allen, 106; 
 Luther v.Winnisimrnet Co. 9 Cush. 171; Morrill v. Hurley, 120 Mass. 99; 
 Parks V. Newburyport, 10 Gray, 28; Flagg v. Worcester, 13 Gray, 601; Dick- 
 inson V. Worcester, 7 Allen, 19; Bangor v. Lansil, 51 Me. 521; Goodale v. 
 Tuttle, 29 N. Y. 459.
 
 Chap. XriL] EIGHT OF LAND OWNER TO CONTROL WATERS. 207 
 
 the rule at common law or the civil law prevails, no right of 
 action can be sustained against the owner of adjoining higher 
 land, who, in the oi-dinary course of husbandry, causes sur- 
 face water to flow on his land with increased velocity or in a 
 more contracted channel, if no damage is caused thereby,' and 
 no change in the distribution of surface water from a superior 
 to an inferior tenement is material, unless injury is done.^ So, 
 where the normal flow of surface water over the plaintiff's land 
 was but slightly increased by the diversion, which caused no dam- 
 age, he cannot recover.' 
 
 The right so to use and improve one's own land does not, how- 
 ever, include tlie right to do so merely by transferring from it 
 surface waters naturally resting upon it to the land of another. It 
 is only where such shifting of the burden follows as an incident 
 to using or improving his land, as such land is ordinarily used or 
 improved, that it can be justified.* Thus the owner of an ui3per 
 estate, on which he has erected a house, has no right to collect the 
 waters which fall upon his roof into gutters, and from thence, bv 
 means of a conducting pipe, transfer and discharge them, althougli 
 upon his own land, at such a place and in such a manner that, 
 necessarily and inevitably, they are precipitated upon lower prem- 
 ises in an unnatural, unusual and injurious volume and quantity.^ 
 
 A railroad company may, for the purpose of properly constructin"- 
 its roadbed, take earth from one part of its premises and use it 
 upon the roadbed, thus leaving an excavation or ditch along each 
 side of it, which is the usual and ordinary way of constructino- 
 railroads in prairie countries. It is evident that in a flat country, 
 if it be desirable to raise the roadbed above the natural surface of 
 the ground, the earth must be taken from alongside of the road- 
 bed, and that so taking it will necessarily leave an excavation or 
 
 J ^Peck V. Goodberlett, 109 N. Y. 180, 12 Cent. Rep. 199. 
 
 »Jeffers v. Jeffers, 107 N. Y. 650, 9 Cent. Rep. 845. 
 
 ^Harrington v. Peck.ll 111. App. 63; Livingston v. McDonald, 21 Iowa, 160- 
 Kobsv. Minneapolis, 22 Minn. 159; O'Brien v. St. Paul, 25 Minn' 3;3l' 
 Hogemon v. St. Paul, M. &M. R. Co. 31 ]\Iinn. 224; Blakebj Ticp. v. Divine 
 36 Minn. 53; Pye v. Mankato, 36 Minn. 373; Olson v. St. Paul, M. & M. 
 R. Co. 38 Minn. 419; Jordan v. St. Paul, M. & M. R. Co. (Minn. 1889) 6 
 L. R. A. 573; Kauffman v. Griesemer, 26 Pa. 408; Bark'eii v Wilcox 86 
 N. Y. 140; JVoonan v. Albany, 79 N. Y. 470; Adams v. Walker 34 Conn 
 466. 
 
 'Beach v. Gaylord (Minn. .June 18, 1890) 45 N. W. Rep. 1095.
 
 298 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 ditch from which the earth has been taken. It is, in accordance 
 ■with the common-law rule as to surface waters, the right of a land 
 owner to use and improve his own land for the purpose for which 
 similar land is ordinarily used, and he may do what is necessary 
 for that purpose and he may build upon it, or raise or lower its 
 surface, even though the effect may be to prevent surface water 
 which before flowed upon it from coming upon it, or to draw 
 from adjoining land surface water which would otherwise remain 
 there, or to shed surface water over land on which it would not 
 otherwise go.* But a raih-oad companj'- which diverts the flow of 
 surface water from its natural channel, and conducts it through a 
 ditch to a point where it overflows the land of another, is liable 
 for resulting damages.' 
 
 Damage to land from surface water, as an incidental conse- 
 quence of the lawful and riglitful use of its easement by a railroad 
 company, is damnum absque injuria.^ 
 
 A party is not responsible for damages which do not result from 
 his own act or omission, but more from the act of a stranger. 
 Hence where plaintiff's land was injured by water flowing from a 
 railroad ditch, where much of the water complained of had been 
 conducted thereon by artificial ditches constructed by other par- 
 ties with whom the railroad company was in no manner connected, 
 the company was not liable. Whatever damage happened by turn- 
 ing water into the railroad ditch by other parties, without the 
 sanction or approval of the company, such other parties alone 
 must be held for." 
 
 The courts of Pennsylvania, Illinois, North Carolina and Lou- 
 isiana have adopted the civil-law rnle, and it has been referred to 
 with approval by the court of Ohio." 
 
 ^Lee V. Minneapolis, 22 Minn. 13; O'Brien v. St. Paul, 25 Minn. 331; 
 
 Henderson v. Minneapolis, 33 Minn. 319; Rowe v. St. Paul, M. & M. R. Co. 
 
 41 Minn. 384. 
 ^East St. Louis & C. R. Co. v. Eisentraut (III. June 30, 1890) 24 N. E. Rep. 
 
 760. 
 ^Bell V. Norfolk Southern R. Co. 101 N. C. 21 ; Hill v. Cincinnati, W. & M. 
 
 R. Co. 109 Ind. 511, 8 West. Rep. 47. 
 ^Chicago & A. R. Co. v. Glenney, 118 111. 487, 6 West. Rep. 544. 
 ^Martin v. Ruldle, 2 Casey (Pa.) 415, note; Qormley v. Sanford, 52 111. 159; 
 
 Porter v. Durham, 74 N. C. 767; Bowman v. New Orleans, 27 La. Ann. 
 
 502; TootU V. Clifton, 22 Ohio St. 247; Barkley v. Wilcox. 86 N. Y. 140, 
 
 145.
 
 Chap. XIII.] KIGUT OF LAND OWNER TO CONTKOL WATERS. 2^9 
 
 In 1850, the common law of England was adopted by statute 
 in California, and in Oghurn v. Connor, 46 Cal. 346, the court 
 attempted to apply the rule of the common law, but by mistake of 
 law applied the rule of the civil law, following an earlier case not 
 reported. Seventeen years later the error was discovered, in 
 McDaniel v. Gummings, 83 Cal. 515, 8 L. R. A, 575, but the 
 court, considering the rule of stare decisis as of controlling force, 
 lias allowed the rule of the civil law regarding surface water to 
 stand as the law of that State. 
 
 In Xew Hampshire a land owner may disturb the natural drain- 
 age only to the degree necessary in the reasonable use of his own 
 land; and what is such reasonable use is ordinarily for the jury to 
 determine only under appropriate instructions.* 
 
 Every citizen holds his property subject to the implied obliga- 
 tion that he will use it in such a way as not to prevent others from 
 enjoying the use of their property." And a land owner has the 
 right in good faith to improve and till his farms, and to fill up sag 
 holes, so that water will not accumulate and stay in them, even 
 if the water arising from rainfalls or melting snow should there- 
 by find its way into a ravine and upon the land of another, and 
 incidentally increase the flow thereon.' One having an easement 
 to discliarge surface water through an open ditch upon lands of an 
 adjoining owner may, if he does not thereby increase the flow, 
 change the ditch to a tile drain.* 
 
 But he has no right to rid his laud of surface wator or superfi- 
 cially percolating water by collecting it in artificial channels and 
 discharging it through or upon theland of an adjoining proprie- 
 tor.* This is alike the rule of the common law and of the civil 
 
 ^Bassett v. Salisbury Mfg. Co. 43 N. H. 569; Swett v. Cutis, 50 N. H. 439. 
 See Hoyt v. Hudson, 27 Wis. 656, and Uurdman v. North Eafiern R. Co. 
 L. R. 3 C. P. Div. 168, as to reasonable use. See also Williamson v 
 Lock's Creek Canal Co. 76 N. C. 478. 
 
 ^State V. Yox)p, 97 N. C. 477. 
 
 ^Oreffory v. Bush, 64 Mich. 37, 7We.st. Rep. 172; Goodalev. Tuttle, 29N.Y. 467; 
 Pettigrew v. Evansville, 25 Wis. 229; Iloi/t v. Hudson, 27 Wis. 656; Bangor 
 V. Lansil, 51 Me. 521; Flftgg v. Worcester, 13 Gray, 601. 
 *Damdsonv. Hutchinson (N. J. Dec. 16, 1889) 18 All. Rep. 977. 
 
 ^Stewart v. Schneider, 22 Neb. 286; Pyle v. Richards, 17 Neb. 181; White v. 
 Chapin, 12 Allen, 516; Foot v. Bronson, 4 Lans, 47; Uicks v. Silliman, 93 
 111. 255; Kauffnian v. Oriesemer, 26 Pa. 415; Martin v. Riddle, 26 Pa. 415, 
 note; Miller v. Laabach, 47 Pa. 154; Butler v. Peck, 16 Oliio St. 334; Liv 
 ingston v. McDonald, 21 Iowa, 160; Davis v. Londgreen, 8 Neb. 43*; Por-
 
 300 IMPOSED DUTIES, PERSONAL. [Part 11, 
 
 law.' A land owner may, at common law, by levees or other ap- 
 pliances on his own premises, prevent the natural flow of surface 
 water upon the surface of his own lands from those above, and is 
 not liable for the injuries resulting to the lands above by reason of 
 the accumulation of such water thereon.'' And the same rule 
 holds good when applied to sub-surface water passing through the 
 earth by percolation. Isor can such adjoining proprietor claim as 
 a benefit the legal right, or, as some of the authorities hold, acquire 
 the privilege by prescription, of having the same continue to pass 
 over or through his lands against the consent of his neighbor.* 
 
 In California, the principle declared in Jiex v. Pagham Sewer 
 Comrs.^ 8 Barn. & C. 355, that the waters of the sea are a common 
 enemy against which any man may erect barriers, although this 
 protection may cause a higher flow of the tide upon his neighbors' 
 lands, has been applied to the flood waters of the large rivers. 
 
 But in Beard v. Murphy^ 37 Yt. 104, the court recognized that,, 
 under the rule of the civil law, if the surface water naturally 
 falling upon the plaintiff's land would run off upon the defendant's 
 land, the defendant had no right to put up any obstruction to pre- 
 
 ter V. Durliam, 74 N. C. 767; Pettigrew v. Evansville, 25 Wis. 233, 227; 
 Fremont, E. & M. V. R. Co. v. Marley, 25 Neb. 138. See Goldsmith v. 
 Elsas, 53 Ga. 186; Oillisv. Nelson, 16 La. Ann. 275; Sowers v. Shiff, 15- 
 La. Ann. 300; Weddell v. Eapner (Ind. May 15, 1890) 24 N. E. Rep. 368; 
 Stoddard v. F'ilgur, 21 111. App. 560; Schneider v. Missouri P. R. Co. 29 
 Mo. App. 68. An owner of lower lands may abate as a nuisance an em- 
 bankment erected by an upper owner upon bis own land to increase the 
 discharge of surface water on the lower owner's lands for the purpose of 
 coercing the latter to allow the water to flow over his lands as it had been 
 permitted to flow for some years, under a verbal license and tacit con- 
 sent of a former owner, provided he does not injure the upper owner's 
 land. White v. Sheldon (Sup. Ct. Dec. 30, 1889) 28 N. Y. S. R. 475. 
 
 ^Barkley v. Wilcox, 86 N. Y. 148; Gould, Waters, 471. 
 
 ^Benthal v. Seifert, 77 Ind. 303; Cairo R. Co. v. Stevens, 73 Ind. 278; 
 Schliehter v. Phillipy, 67 Ind. 201 ; Morrison v. Bucksport & B. R. Co. 
 67 Me. 353; Bangor v. Lansil, 51 Me. 531; Sicett v. Cutis, 50 K H. 439; 
 Burke v. Missouri P. R. Co. 29 Mo. App. 370; Schneider v. Missouri P. R. 
 Co. 29 Mo. App. 68. A land owner may obstruct or hinder the natural 
 flow of surface water, in the use and improvement of his land, without 
 providing drains to prevent accumulation upon the adjacent lands, sub- 
 ject to the reasonable restriction that he must so use his land as not to 
 injure his neighbor. Rowe v. Si. Paul, M. & M. R. Co. 41 Minn. 384. 
 
 ^Pettigrew v. Evansville, 25 Wis. 223; Luther v. Winnisimmet Co. 9 Gush. 171; 
 A.Hhley v. Wolcott, 11 Gush. 192; Ooodale v. Tuttle, 29 N. Y. 45^ \ Rawstron 
 V. Taylor, 33 Eng. L. «& Eq. 428; Broadbent v. Ramsbotham, 34 Eng. L. & 
 Eq. 555;'Ellis v. Duncan, 21 Barb. 230; Fryer v. Warne, 29 Wis. 511; 
 Hoyt v. Hudson, 27 Wis. 656. 
 
 *McDaniel v. Cummings, 83 Gal. 515, 8 L. R. A. 575.
 
 Chap. XIII.] EIGHT OF LAND OWNER TO CONTKOL WATERS. 301 
 
 vent its continuing to do so. It is the duty at common law of 
 every owner of land, if lie wishes to carry off the surface water 
 from his land, to do so without material injurj' or detriment to the 
 lands of his neighbors, and he cannot resort to extraordinary 
 means and cut canals and channels to cast it upon his neighl)or's 
 land in unusual amounts and places to his serious injury. He is 
 not required, however, to pi-event the surface water from his land 
 from flowing on to the land of another, when such flowing is pro- 
 duced by natural causes. Considerable latitude is left to the own- 
 ers of estates as to the manner in which they will cultivate and 
 improve them, and in so doing they may undoubtedly somewhat 
 change the course and flow of the surface water so as measurably 
 to increase the quantity passing over or upon the lands of another. 
 They may level and fill up wet and low places so as to render 
 them arable, or fit for crops, thus causing the water which pre- 
 viously settled in them to spread and pass to the lands of others 
 without serious injury to them. But the extent to which any 
 proprietor may go in these and other ways in incidentally, while 
 improving his own land, turning the surface water of his own land 
 off on the lands of others, must, in each case, be determined by 
 the degree of comparative injury it may produce and relieve. In 
 Admns v. WaJlxer^ 34 Conn. 466, the court refused to permit the 
 grading of the surface of laud to prevent the water flowing into a 
 well of the owner, because it cast it injuriously upon the land of 
 another. The distinction between surface and subterranean waters 
 has been stated ante^ § 25.
 
 CHAPTEE XIV. 
 
 CARE OF SURFACE WATER IN CITIES. 
 
 Sec. 29. Duty of Otoner of City Lots Regarding Surface or Perco- 
 lating Water. 
 
 Sec. 30. Duty of City in Controlling Surface and Percolating- 
 Water, and in Supplying Water Artificially. 
 
 Sec. 31. Negligence in Adopting Plan, or in Its Execution, or in Care 
 of Gutters and Drains. 
 
 Section 29.— Duty of Owner of City Lots Regarding 
 Surface or Percolating Water. 
 
 Generally the owner of improved city property, even where the 
 rule of the civil law prevails, will be held to the common-law rule- 
 respecting surface water,' 
 
 An owner of a city lot may fill it up and build upon it and the 
 surface water of adjoining lots may thus be prevented from flow- 
 ing upon it, or the surface water may be thrown from it upon 
 adjoining lots and flow upon them in a different way and in larger 
 quantities . than before, and yet no liability will arise. Eacb 
 owner may improve his lot, and protect it from surface water. 
 He may not collect such water into a channel, and throw it upon 
 his neighbor's lot. But he is not bound, for his neighbor's pro- 
 tection, to collect the surface water which falls upon his lot, and 
 lead it to a sewer." ISTor is he liable for not preventing surface 
 water flowing upon his land and thence upon the land of another.* 
 
 ^Phillips V. WaierJiouse, 69 Iowa, 199; Mellor v. Pilgrim, 3 111. App. 476, 7111. 
 App. 306; Vanderwiele v. Taylor, 65 N. Y. 341; Earl v. Be Hart, 12 N. 
 J. Eq. 280; Doerhaum v. Fischer, 1 Mo. App. 149; Gross v. Lampasas, 74 
 TeXi 195; Watson v. Kingston, 114 N.Y. 88; Boitz ^.Armstrong, 8 Watts 
 & S. 40; Young v. Leedom, 67 Pa. 351; Livingston v. McDonald, 21 Iowa, 
 160; Whitney v. Sanders, 3 Pittsb. L. J. 226; Phinizy v. Augusta, 47 Ga. 
 260; Freudenstein v. Heine, 6 Mo. App. 287; Oormley v. Sanford, 50 111. 
 159; Gould, Waters, 268; Thomas v. Kenyan, 1 Daly, 132. 
 
 "^Sentner v. Tees, 132 Pa. 216; Vandenciele v. Taylor, 65 N. Y. 341; Gannon. 
 V. Hargadon, 10 Allen, 106; Lynch v. Neio York, 76 N. Y. 60; Franldin 
 V. Fisk, 13 Allen, 211; Parks v. Newburyport, 10 Gray, 28; Flagg v. Wor- 
 cester, 13 Gray, 601; Dickinson v. Worcester, 7 Allen, 19. 
 
 ^Mori-ill V. Hurley, 120 Mass. 99.
 
 Chap, XIV.] DUTY OF OWNER OF CITY LOTS. 303 
 
 A city property owner lias a ric^lit to preventsnrface water from 
 flowing over his hind by tlie buikling of a wall, even though thei-c- 
 by the water is forced back into the street; and his act in build- 
 ing such wall will not prevent a recover}' fi-oin the city for dam- 
 ages to his property from the improper construction of a drain to 
 carry off such water.' 
 
 A person whose premises are situated on the lower side of a 
 street cannot recover for damages from surface water from the 
 street, wdiere it does not appear that the premises are subjected to 
 a further burden than they were required to bear when they were 
 in a natural state.* 
 
 An owner of a lot in the city has the right so to improve it as 
 to cast rain-water falling upon it on the adjacent street or lot at 
 the established grade, and he will not be liable for damages caused 
 by the flowing of such water upon a neighboring lot which is 
 below grade.* Nor will he be liable for permitting water to 
 flow upon his land and thence upon an adjoining lot.* xVn 
 owner may raise his lot and cast back the surface water flowino- 
 upon him.* 
 
 An owner of lower lands may abate as a nuisance an embank- 
 ment erected by an upper owner upon his own land to increase 
 the discharge of surface water on the lower owner's lands, for the 
 purpose of coercing the latter to allow the water to flow as it had 
 been permitted to flow for some years under a verbal license and 
 tacit consent of a former owner, provided he does not injure the 
 upper owner's land.* 
 
 Where the owner of land in a city upon a public street, the 
 surface of which land is depressed so as to allow surface water to 
 collect and flow to the street over another portion of his land, sells 
 the portion on which the waters so collect, and thereafter permits 
 them to collect and flow between the lot sold and that retained by 
 
 ^ Gross V. Lampasas, 74 Tex. 195. 
 
 ^Watson V. Kingston, 114 N. Y. 88. 
 
 ^Phillips V. Waterlwuse, 69 Iowa, 199. 
 
 *Morrill v. Hurley, 120 Mass. 99. 
 
 ^Fi-anklin v. FisJc, 13 Allen, 211; Gannon v. Eargadon, 10 Allen, 106; Parks 
 V. Neicburijport, 10 Gray. 28; Flagg v. Worcester, 13 Gray, 601; Dickinson 
 V. Worcester, 7 Allen, 19; Bates v. Smith, 100 ]\Iass. 181. 
 
 ^White V. Sheldon (Sup. Ct. Dec. 30, 1889) 28 N. Y. S. R. 475.
 
 304 IMPOSED DUTIES, PEKSONAL. [Part II. 
 
 him, for a j^eriod of over twenty years, he will be enjoined from 
 thereafter obstructing the flow.' 
 
 In Iowa it is held that the owner of what the civil law calls the 
 dominant or higher estate has the right to conduct the water fall- 
 ing upon his land, by means of underground tile drains, into the 
 channel provided by nature for the drainage of his land, and 
 through such channel to cast it upon the servient or lower estate.* 
 But in order that one may have the right to drain his land into 
 a natural channel or depression there must be a natural channel, 
 depression or outlet thereon.^ But under no circumstances may 
 one permit water to accumulate and stagnate upon his own prem- 
 ises to the injury of the health of others." 
 
 SECTioif 30.— Duty of City in Controlling Surface 
 and Percolating Water, and in Supplying 
 Water Artificially. 
 
 The rule obtaining among individuals at common law holds 
 good, even in States which apply the civil law in rural districts, 
 between towns and villages and individual proprietors. Thus, a 
 municipal corporation is liable to one upon whose lands it conducts 
 surface water wrongfully diverted from its natural channel.* 
 The same general principle is applied to towns and cities in their 
 capacity of owners of land for streets and alleys and other public 
 uses, which applies at common law to individuals, and such munic- 
 
 ^Ross V. Mackeney, 46 N. J . Eq. 140. 
 
 "^ Vannest v. Fleming, 79 Iowa, 638. 
 
 ^Ribordy v. Pellachoud, 28 HI. App. 303. 
 
 ^Hamilton v. Columbus, 53 Ga. 435. 
 
 ^ Clark V. Rochester, 43 Hun, 271; Miller v. Morristoion (N. J. June 30, 1890) 
 20 Atl. Rep. 61; Field v. West Orange, 46 N. J. Eq. 183; Sullivan v. Phil- 
 lips lio Ind. 320, 9 West. Rep. 49; Fremont, E. & 31. V. R. Co. v. Mar- 
 ley '25 TSTeb. 138; I?i7nan v. Tripp, 11 R. I. 520, 23 Am. Rep. 520; Winn 
 V. Rutland, 52 Vt. 481; Seifert v. Brooklyn, 101 N. Y. 136, 2 Cent. Rep. 
 135; Olson v. St. Paul, M. cfc M. R. Co. 38 Minn. 419; O'Brienv. St. Paul, 
 25 Minn. 331; Pettigrew v. Evansville, 25 Wis. 223; Nevins v. Peoria, 41 
 111. 502, 89 Am. Dec. 392; Ashley v. Port Huron, 35 Micb. 296, 24 Am. 
 Rep. 553; Beach v. Elmira, 23 Hun, 158; BastabU v. Syracuse, 8 Hun, 
 587 73 N. Y. 64; Vincennes v. Richards, 23 Ind. 381; Aurora v. Reed, 57 
 111. 30; Alton v. Hope, 68 111. 167; Merrifield v. Worcester, 110 Mass. 216; 
 Crabtree v. Baker, 75 Ala. 91, 51 Am. Rep. 424; Oillison v. Charleston. 16 
 W. Va. 282, 37 Am. Rep. 763; Hitchins v. Frostburg, 68 Md. 100, 6 Am. 
 St.' Rep. 422; Rychlicke v. St. Louis, 98 Mo. 497, 4 L. R. A. 594; Byrnes 
 V. Colwes, 67 N. Y. 204; Noonan v. Albany, 79 N. Y. 470; Denver v. 
 Rhodes, 9 Colo. 554.
 
 Chap. XIY.] DUTY OF CITY IX CONTROLLING WATER. 305 
 
 ipal corporations, like other owners, are not usually held liable in 
 damages to the proprietors of other lands for interrupting the flow 
 of surface water across streets or lands held for other public uses.' 
 
 Commissioners in grading highways are not bound to provide a 
 channel for the drainage of surface water, and the town is not 
 liable for injuries resulting from their omission to do so.' Where 
 the quantity of surface water sent to the point of discharge is in- 
 creased by an enlargement of the area of drainage, but such en- 
 largement results entirely from making the grade of the streets 
 conform to the grade established by the proper authority, any in- 
 jury resulting from the increase in the quantity of water dis- 
 charged at that point is regarded in law as dmnnmn absque inju- 
 ria.^ And a city is not answerable for damages to a land owner 
 from surface water, which he suffers in consequence of changes 
 made in the highways pursuant to authority of law.* 
 
 That a street level has been raised does not cast upon the city 
 the duty to protect lots along the highway by sewers and embank- 
 ments, from the rain-water which falls on the street and flows 
 therefrom, unless the improvement diverts some stream of water 
 upon the lots or collects surface water into a channel and throws 
 it upon the lots.* But a municipal corporation is required to exe- 
 cute the work of constructing a public improvement, such as a 
 sewer, in a careful and skillful manner ; and if, by reason of the 
 neglect or want of skill of the person engaged in the work, prop- 
 erty of a citizen, built with reference to an established grade, is 
 injured by surface water, the proper channels for the flow of which 
 are obstructed, the city is liable." So a municipality changing 
 
 ^ Parks V. Newhuryport, 10 Gray, 28; Flarjg v. Worcester, 13 Gray, 601. 
 
 ■^ Acker v. New Castle, 48 Hun, 312; Wilson v. New York, 1 Denio, 595; Flagg 
 
 V. Worcester, 13 Gray, 601; Clark v. Wilmington, 5 Harr. (Del.) 243; Imler 
 
 V. Springfield, 55 Mo. 119; Murphy v. Chicago, 29 111. 275; Nebraska City 
 
 V. Lampkin, 6 Neb. 27; Pontiac v. Carter, 32 Mich. 164; Hotey v. Mayo, 
 
 43 Me. 322; Benden v. Nashua, 17 N. II. 477; O'Connor v. Pittsburgh, 18 
 
 Pa. 187; Humes v. Knoxville, 1 Humph. 403. 
 ^Miller V. Morristown (N. J. June 30, 1890) 20 Atl. Rep. 61. 
 *Field V. West Orange, 46 N. J. Eq. 183. 
 ^Lynch v. New York, 76 N. Y. 60; Wilson v. New York, 1 Denio, 595; MiU» 
 
 V. Brooklyn, 32 N. Y. 489; Kavanagh v. Brooklyn, 38 Barb. 232; Mui-phy 
 
 V. Chicago, 29 111. 279. 
 ^Denver V. Rhodes, 9 Colo. 554; Nevinsv. Peoria, 41 111. 502; Ellis v. Iowa 
 
 City, 29 Iowa, 229; Spelman v. Portage, 41 Wis. 144; Leavenworth v. 
 
 Casey, McCahon (Kan.) 124; Cotes v. Davenport, 9 Iowa, 227; Boss v. 
 
 Clinton, 40 Iowa, 600. 
 20
 
 306 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 the grade in rebuilding the outlet of a street sewer, and negli- 
 gently raising it above that of the sewer, thereby causing the dis- 
 charge of sewage upon private premises, is liable.' And although 
 no responsibility attaches for damages done by the diversion of 
 surface water, where the diversion is merely incidental to and 
 occasioned by the making or alteration of street grades,' yet 
 there is a reasonable limit to this exemption from liability, and 
 a municipality has no right by artificial drains to divert surface 
 water from its natural course, and throw it in a body large enough 
 to do substantial injury on land where it would not go except for 
 such artificial drains, although the work is done for the improve- 
 ment or construction of a highway." If gutters in streets do 
 not bring more water than the streets would have brought with- 
 out them, or would have come down if there had been no streets 
 there, a city is not liable for surface waters flowing therefrom upon 
 laud of a private owner ;* but municipal authorities may not 
 intercept by a drain, surface waters which would naturally flow on 
 adjoining lands, and thence along the highway to an intersecting 
 highway, then along the latter for a considerable distance, and 
 discharge them on other lands, even if they be lands of the same 
 owner.'' But a city may refuse permission to a land owner to 
 turn surface water accustomed to flow over his land into a gutter 
 of one of its streets, to prevent its flowing in its former course, 
 althouo-h the improvement of the street obstructed its flow in the 
 direction in which it naturally ran.' Indeed, a city owes no duty 
 to keep open a drain in a highway to prevent surface water flow- 
 ing on the land of a private owner, if the gutter receives no more 
 water than naturally would flow there if there was no street at 
 that place.'' But a very different rule exists as to natural streams 
 from that governing a city in the management of surface water. 
 
 Wefer v. Detroit, 67 Mich. 346, 11 West. Rep. 530. 
 
 "^Miller v. Morrutown (N. J. June 30, 1890) 20 Atl. Rep. 61. 
 
 ^Fieldv. West Orange, 46 N. J. Eq. 183; Nevins v. Peoria, 41 111. 502; Spel- 
 man v. Portage, 41 Wis. 144; Bartle v. Des Moines, 38 Iowa, 414; Bloom- 
 inrjton v. Brokaw, 77111. 194; LeavemcortJiY. Casey, McCahon (Kan.) 124; 
 Rhodes v. Cleveland, 10 Ohio, 159; Akron v, McComb, 18 Ohio, 229. 
 
 '^Collins V. Waltham, 151 Mass. 190. 
 
 ^Slack V. Lawrence Twp. (N. J. March 31, 1890) 19 Atl. Rep. 663. 
 
 ^Bush V. Portland (Or. March 24, 1890) 23 Pac. Rep. 667. 
 
 ''Collins V. Waltham, 151 Mass. 196.
 
 Chap. XIV.] DUTY OF CITY IN CONTROLLING WATEK. oUT 
 
 A city has not the right, with rcf^pcct to natural streams, to injure 
 the property of others by badly constructed and insulhcient cul- 
 verts or passageways obstructing the free flow of water ; and a 
 liability will exist against it for filling up or damming back a 
 stream, so that it overflows its banks and flows upon the lands of 
 another.' But a creek flowing in a zigzag direction through a 
 municipal corporation, and which is fed by mountain springs, and 
 swollen at times by sudden rains and melting snows, is, at least so 
 far as it interferes with and crosses the streets and alleys of the 
 city, within its control and subject to its municipal power; so that, 
 in the absence of objection on the part of persons who have the 
 right to insist upon having the stream flow in its natural channel, 
 the city may make a valid contract to have the creek straightened ;* 
 or, if injurious to public health, it may be conducted in a covered 
 culvert.* 
 
 It is an established maxim that no action will lie for the conse- 
 quences of an act done under lawful authority, if proper care and 
 skill are exercised in performing such act." That cannot be a 
 nuisance, such as to give a common-law right of action, which the 
 law authorizes ; and the grant of power by the Legislature to dig 
 sewers, to construct tunnels or build bridges, carries with it all 
 that is necessary for the exercise of the power.' Public officers 
 or corporations cannot be liable to an action for what they have 
 done under lawful authority, and in a proper manner." All the 
 cases recognize the constitutional rule that private property can- 
 not be taken for public use without just compensation ; but the 
 conti-olling weight of authority is to the elfect that no merely 
 consequential damage to property, even though it may temporarily 
 deprive the owner of its use, is a taking of such property within 
 the meaning of the constitutional provision. Acts done in the 
 proper exercise of governmental powers, and not directly en- 
 croaching upon private property, though their consequences may 
 impair its use, are universally held not to be a taking within the 
 
 ' Young v. Kansas City, 37 Mo. App. 101. 
 
 UfcGuire v. Rapid City (Dak. Oct. 10, 1889) 5 L. R. A. 753. 
 
 ^Mtirphey v. Wilmington, 5 Del. Ch. 381. 
 
 *Ely V. Rochester, 3(j Barb. 133, 137. 
 
 ^Northern Transp. Co. of Ohio v. Chicago, 99 U. S. G35, 21 L. ed. 336. 
 
 ^Radcliffy. Biooklyn, 4 N. Y. 195.
 
 308 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 meaning of the constitutional provision. They do not entitle the 
 owner of such property to compensation from tlie State or its 
 agents, or give him any right of action. 
 
 In Northern Transp. Co. of Ohio v. Chicago, 99 U. S. 635, 21 
 L. ed. 336, the defendant, in the construction of a tunnel under 
 the Chicago River, had constructed a coffer-dam, which practically 
 excluded the plaintiff's boats from access to its wharves, and by 
 the accumulation of cUhris and material for the work had equally 
 excluded the plaintiff and its customers from its warehouses. 
 These acts were found to be necessary to the accomplishment of 
 the work, and temporary in these effects, and the damage to the 
 plaintiff was held to be consequential merely and damnum absque 
 injuria. 
 
 In Atwater v. Canandaigua, 56 Hun, 293, the flooding of a 
 portion of plaintiff's farm, situated on the shore of Canandaigua 
 Lake, caused by the construction, by the village defendant, of a 
 coffer-dam in the outlet of the lake, under authority of the Legis- 
 lature, for the purpose of draining and reclaiming wet and swamp 
 lands in said village, was held to be damnum absque injuria. 
 
 A city has the right, on its own land, to extend sewers for 
 drainage to low-water mark, discharging them into the sea. Such 
 erections are not a public nuisance, the subjects of action for pri- 
 vate damage, although the land on which they extend has long 
 been used as a dock for plaintiff's wharf." 
 
 If, in sinking driven wells on its own land, a city does no more 
 than intercept the percolation of underground currents, and there- 
 by prevent such water from running through the soil and reaching 
 a stream, an action will not lie for the diversion of the waters of 
 the stream.'' 
 
 A city is not bound to make a chemical examination of the 
 water of free public wells, for the purpose of ascertaining whether 
 it is pure and wholesome, where it has no notice that the water is 
 unwholesome, and furnishes a public water supply by running 
 water in addition to the wells.' Nor is a city liable, until notice, 
 for negligence in maintaining a well containing impure water 
 
 ^BoHton V. Lecraw, 58 U. S. 17 How. 436, 15 L. ed. 118. 
 
 ^Van WycUyn v. Brooklyn,\l% N. Y. 434. 
 
 ^Danalier v. Brooklyn. 51 Hun, 563, affirmed, 119 N. Y. 341, 7 L. R. A. 593.
 
 Chap. Xiy.] DUTY OF CITY IN CONTROLLING WATER. 309 
 
 caused by the properties contained in the eartli througli which the 
 water percolates.' 
 
 "Where, under a contract between a city and water-supply com- 
 pany, the hatter is placed under oblio:ations to lay down pipes in 
 the streets and alleys of the city so as to make the water accessible 
 to the citizen for his private use by coimection with pipes to be 
 constructed and paid for by the owner of the premises, there is no 
 obligation requiring the company to furnish the citizen with con- 
 necting pipes or any right on the part of the company to enter 
 and lay down pipes upon private property for that purpose, and 
 the citizen must therefore contract with the company or some 
 other person for the construction of connecting pipes. No power 
 can be given to a water-supply company by a city ordinance to 
 select the person who is to contract with the citizen, and to Dre- 
 vent any person, without a license from that corporation, from dis- 
 charging such a duty, without executing a bond to the company 
 with such a penalty as it may prescribe. When a water-supply 
 company undertakes the performance of the public duty of pro- 
 viding water for the use of the citizen, and is permitted to exer- 
 cise the full right of appropriating a part of the streets to its own 
 use, the company devotes its property, including its mains, to the 
 public use ; and, while it will be permitted to control and use its 
 property for the purposes contemplated, it has no right to prohibit 
 such connection with its main pipes as is necessary for the supply 
 of water to the private citizen or for private use, or to dictate to 
 the owner whom he shall employ for that purpose, or prevent one 
 whose education and experience fit him for the business of 
 plumbing from laying down pipes and connecting them with the 
 main pipes of the corporation. The owner of the property de- 
 siring to use the main pipe of the company by means of the con- 
 necting pipe, so as to convey water to his private dwelling, may 
 contract with the company for its use, and if he offers one fully 
 skilled in the business to make the connection for him, it cannot 
 make the objection that he has no permit and has failed to exe- 
 cute a bond as required by the company. The connection should 
 be made under the supervision of the company and at a point 
 convenient for the owner of the dwelling, and not wherever the 
 
 WanaJier v. Brooklyn, 51 Hun, 563, affirmed. 119 N. Y. 241, 7 L. R. A. 592.
 
 310 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 owner may desire, and in such manner as may be suggested by the 
 party employed to do the work. An}' other rule would enable 
 the company to select its own men for the work and place the city 
 at the mercy of the corporation/ 
 
 Section 2>l.—Megligenc6 in Adopting Plan, or in Its 
 Execution, or in Care of Gutters and Drains. 
 
 To determine whether there is municipal responsibility, the in- 
 quiry must be whether the department whose misfeasance or non- 
 feasance is complained of is a part of the machinery for carrying 
 on the municipal government, and whether it was at the time en- 
 gaged in the discharge of such a duty, or charged with a duty 
 primarily resting upon the city.* 
 
 A municipal corporation is an instrumentality of government, 
 and is not liable for a failure to exercise legislative or judicial 
 powers, or for an inadvertent, improper exercise of such powers.' 
 
 "Where a duty is a corporate duty in respect of its special or local 
 interests, is not a public agency, and is absolute and perfect, and 
 not discretionary or judicial in its nature, and is one owing to 
 an individual or in the performance of which he is specially inter- 
 ested, the corporation is liable in a civil action for the damages 
 resulting to the individual by its neglect to perform the duty, or 
 for the want of proper care or want of reasonable skill of its offi- 
 cers or servants acting under its direction or authority in the exe- 
 cution of such a duty, on the same principles and to the same 
 extent as an individual or private corporation would be under like 
 circumstances.* But the duty imposed must be absolute or im- 
 
 ^Franke v. Paducah Water Supply Co. (Ky. April 23, 1889) 4 L. R. A. 265. 
 
 ^Pettenqill v. Yonhers, 116 N. Y. 558; Ehrgott v. New YorTc, 96 N. Y. 264; 
 Eim» V. Lockport, 50 N. Y. 236; Elgin v. Kimball, 90 III. 356; Hill v. 
 Boston, 122 Mass. 344. 
 
 *Wheeler v. Plymouth, 116 Ind. 158; Dooley v. Sallivan, 112 Ind. 451, 11 
 West. Rep. 816; Terre Haute v. Eudnut, 112 Ind. 542, 11 West. Rep. 333; 
 Faulkner \. Aurora, 85 Ind. 130; Lafayette v. Timberlake, 88 Ind. 330; 
 McDade v. Chester City, 117 Pa. 414, 10 Cent. Rep. 779; McArthur v. 
 Saginaw, 58 Mich. 357; Agnew v. Corunna, 55 Mich. 428; Bines v. Char- 
 lotte, 72 Mich. 278, 1 L. R. A. 844; Kiley v. Kansas City, 87 Mo. 108. 
 2 West. Rep. 201; Hubbellv. Viroqua, 67 Wis. 343; Robinson v. Green- 
 mile 42 Ohio St. 625, 51 Am. Rep. 857, and note; Anderson v. East, 117 
 Ind.' 126, 2 L. R. A. 712. 
 
 *Lloyd V New York, 5 N. Y. 369; McCullough v. Brooklyn, 23 Wend. 458; 
 2 Dillon, Mun. Corp. § 980; Kiley v. Kansas City, 87 Mo. 103.
 
 Chap. XIV.] NEGLIGENCE IN AUOrXING PLAJI. 311 
 
 perative, not such as under a _2:rant of authority is intrusted to the 
 judgment and discretion of the municipal autliorities ; for it is a 
 well-settled doctrine that a municipal corporation is not liable to 
 an action for damages, either for the nonexercise of, or for the 
 manner in which in good faith it exercises, discretionary powers 
 of a public or legislative character.' 
 
 Municipalities are answerable for neglect to perform an absolute 
 duty, as distinguished from a discretionary duty, and for neglect 
 to execute a private, as distinguished from a public, power." 
 
 When a legal duty has been imposed by statute upon a munic- 
 ipal corporation, it is undoubtedly liable for injuries resulting 
 from the neglect of that duty; in such case it stands on the same 
 footing, in respect to negligence, as a purely private corporation 
 or an individual.' 
 
 While the rule is universally admitted, that no relief can be ob- 
 tained for an injury suffered through the actual exercise of an 
 official. discretion personal to the officers, or, as it is sometimes 
 called, the exercise of judicial functions by the officers, of a munic- 
 ipal corporation, unless the result is the creation of an absolute 
 nuisance, or an invasion of the absolute right of property,* yet 
 the application of this principle to special cases has often resulted 
 in decisions by no means harmonious. The rule stated by Elliott, 
 J.^ in North Vernon v. Voegler, 103 Ind. 314, 1 West. Eep. 566, 
 is an attempt to draw a line of distinction between liability and 
 exemption therefrom. It is held in that case that, while a munic- 
 
 hVcBade v. Chester, 117 Pa. 414, 10 Cent. Rep. 783. 
 
 Uuley V. Ka7isas City, 87 Mo. 103, 2 West. Rep. 201. 
 
 ^Erie V. Schwingle, 23 Pa. 388; Murphy v. Lmoell, 124 Mass. 564; Aldrich v. 
 Tripp, 11 R. I. 141; Little Ilock v. Willis, 27 Ark. 572; Eastman v. Mere- 
 dith, 36 N. H. 284. 
 
 *Vincennes v. Richards, 28 Ind. 381; Noonan v. Albany, 79 N. Y. 475; Cubit 
 V. O'Dett, 51 Mich. 347; Byrnes v. Cohoes, 67 N.Y. 204; McCord v. Iliyh, 
 24 Iowa, 336; Lacour v. Mayor, 3 Duer, 406; Richardson v. Boston, 60 U. 
 8. 19 How. 263, 15 L. ed. 639; Sleight v. Kingston, 11 Hun, 594; Barton 
 V. Syracuse, 36 N. Y. 54; Wilson v. Marsh, 34 Vt. 352; Lloijd\. New 
 York, 5 N. Y. 369. 55 Am. Dec. 347; Bastable v. Syracuse, 8 Hun, 587; 
 Beach V. Elmira, 22 Hun, 158; Rochester White Lead Co. v. Rochester, 3 
 N. Y. 466; Perry v. Worcester, 6 Gray, 544; AsJiley v. Port Huron, 35 
 Mich. 296; Story v. JS'ew York Elevated R. Co. 90 N. Y. 122; Seifert v. 
 Brooklyn, 101 N. Y. 136; Camden v. Mulford, 26 N. J. L. 56. But the 
 fact that an officer is clothed with a discretion in the discharge of a duty 
 as to the manner of its performance or as to the control of attendant acts 
 or circumstances necessarily arising in its course, does not give to his 
 acts a judicial character. McCord v. High, 24 Iowa, 336.
 
 312 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 ipal corporation is not liable for mere errors of judgment in the 
 plan of a public improvement, it is liable for negligence in devis- 
 ing the plan, as well as in the manner of executing the work; 
 that where the lack of care and skill in devising the plan is so 
 great as to constitute negligence in the very act of selection of the 
 method adopted, the municipal corporation is liable for injuries 
 resulting to adjacent property, although the plan adopted be faith- 
 fully carried out. The proposition was thus stated by Frazer, «/., 
 in Indianapolis v. Huffei^ 30 Ind. 235, 237 : "An incorporated 
 city is not ordinarily liable for consequential injuries to private 
 property, resulting from the grading and improvement of its 
 streets, if, in the making of such improvements, reasonable skill 
 and care be used to avoid the injuries. The skill and care which 
 are incumbent relate as well to the capacity of the sewer as to the 
 mere mechanism in its construction — as well to its plan as to its 
 execution. Logansport v. Wright^ 25 Ind. 513, and authorities 
 there cited. Rochester White Lead Co. v. Rochester., 3 JST.Y. 463, 
 is especially in point. Indeed, the liability of a city in such cases 
 rests on exactly the same foundation as that of a natural person. An 
 infallible judgment is not required to avoid liability, but the con- 
 struction of a sewer (rendered necessary by street improvements) 
 of such incapacity that every sane man knows in advance that it 
 will not afford relief from the consequences of obstruction to the 
 natural drainage caused by the filling of the street, would be dis- 
 pensing with the use of common sense, and by no means consis- 
 tent with that reasonable care which the law requires. It would^ 
 indeed, be carelessness most gross and wanton — not merely an 
 error of judgment, but a failure to exercise judgment at all." 
 This test has been consistently adhered to in that State.' Indeed^ 
 the authorities which hold that, if a municipal corporation, by its 
 system of constructing sewers, render an outlet necessary, it will 
 be guilty of actionable negligence in not providing a sufficient one» 
 in effect adopt this rule.^ 
 
 In Byrnes v. Cohoes., 67 JS". Y. 204, it is said that the rule, that 
 
 ^Indianapolis v. Lawyer, 38 Ind. 348; Indianapolis v. TaU, 39 Ind. 282; Wei» 
 V. Madison, 75 Ind. 241, 39 Am. Rep. 135; Cummins v. Seymour, 79 Ind. 
 491, 41 Am. Rep. 618; Evansville v. Decker, 84 Ind. 325; North Vernon 
 V. Voegler, 89 Ind. 79; Crawfordsville v. Bond, 96 Ind. 236. 
 
 « See authorities cited ante, p. 290, notes 2, 3, p. 292, note 4.
 
 Chap. Xiy.] NEGLIGENCE IN ADOPTING PLAN. 313 
 
 a municipal corporation is not liable for an omission to supply 
 drainage or sewerage, does not apply where the necessity for the 
 drainage is caused by the act of the corporation itself. In Roch- 
 ester White Lead Co. v. Rochester^ 3 N. Y. 403, the culvert was 
 built after the plan adopted by the city cou!icil, but that body saw 
 " fit to select for the responsible duty of adviser in these important 
 matters a man who laid no claim to the skill of a professional en- 
 gineer. He was their agent ; and it will not answer for an indi- 
 vidual or a corpoi'ation to select an incompetent agent and then 
 shield themselves from the consequences of his injudicious acts by 
 justifying under his advice. jSTo careful and prudent man would 
 employ an agent to direct so important a work who was destitute 
 alike of education and skill in his particular department of pro- 
 fessional science." In that case the immediate cause of the injury 
 was the flood occasioned by rain and the melting of snow on the 
 tract of 400 acres drained by a natural stream carried through 
 this culvert. Several engineers stated on the trial " that the cul- 
 vert was much smaller than it should have been. It was proved 
 to be the practice among skillful engineers to build culverts large 
 enough to provide against accidental obstructions and extraordi- 
 nary freshets, and that within this rule the culvert in question 
 should have been at least one third larger." Here plainly the 
 fault was in the plan adopted by the common council and not in 
 its imperfect or negligent execution, although attempts have been 
 made to rest the case upon an imperfect execution of the work. 
 Thus it is said a corporation is not responsible for any error or 
 want of judgment ujion which its system of drainage was devised.' 
 But it was the want of due diligence in taking the advice of a reason- 
 ably competent civil engineer that charged the common council 
 with negligence in the exercise of its judicial function, or in the 
 failure to exercise it with an advised discretion. 
 
 In Hubhell V. YonJcers, 35 Hun, 349, when the injury resulted 
 from want of an embankment along an exposed hio-hway, the 
 opinion, after acquiescing with approval in the result reached in 
 Urquhartv. Ogdensburg, 91 N.Y. 67, and 3fill8 v. BrooMyn, 32 
 N.Y. 489, concludes that these cases do not decide that a munic- 
 ipal corporation may escape liability for a defective construction 
 
 ^Mills V. Brooklyn, 33 N. Y. 489; McCarthy v. Syracuse, 46 N. Y. 194.
 
 314 IMPOSED DUTIES, PEKSONAL. [Part II. 
 
 of an improvement, merely because it is made in accordance with 
 an approved plan. If, it is said, a bridge over a ravine or a water 
 stream was built by a city or village, and left without a side guard, 
 or a street was constructed on a causeway high above the natural 
 level of the ground, and left without side rails or protection, re- 
 sponsibility for injuries resulting from their absence could not be 
 avoided by showing that they were made in accordance with the 
 plans. Such a doctrine, carried to its legitimate conclusion and 
 result, might release all municipal corporations from the duty im- 
 posed on them to maintain the streets within their limits in a safe 
 condition for travel in the usual modes. The case before the 
 court was that of a public street, built ten feet in the air, and left 
 for ten years unprotected, and the claim by the city was that 
 the plan of improvement called for no side rails or other protec- 
 tion to the traveler. The court ruled that if the public had a 
 right to require guards for the sides of the street, and the failure 
 to erect them was negligence, the city was liable for injuries result- 
 in o- from their absence. On appea? the case was reversed only on 
 the ground that the words in the city charter " ' exposed places, ' 
 with reference to such a case as this, must mean ' dangerous 
 places ; ' and, considering the facts in this case, we do not think 
 this was such a dangerous or exposed place that a failure to guard 
 it with railings could fairly be called negligence. The cases cited 
 by plaintiff's counsel" as to the duty of a town or city to guard 
 the edge of a road passing along a precipice, do not control the 
 decision of this case The same reasons prevail as to rail- 
 ings on a bridge, for their absence would strike everyone as a plain, 
 if not criminal, neglect of even ordinary care." 
 
 In Ivoi-y V. Deerj>arlc, 116 N. Y. 476, it is ruled that, while 
 hio-hway commissioners may exercise their judgtnent and discre- 
 tion as to the application of funds in their hands, that discretion 
 must be reasonably exercised. 
 
 In Atwater v. Canandaigua, 56 Hun, 293, where authority was 
 given to a village to erect certain works at the foot of a lake for 
 the purpose of sewerage and drainage, and it was claimed that 
 the plan adopted had caused the overflow of lands on the lake, it 
 
 ^HubMl V. Yonkers, 104 N. Y. 434, 6 Cent. Rep. 499. 
 
 ^Macauley v. New York, 67 N. Y. 602; Kennedy v. New York, 73 N. Y. 365.
 
 •Chap. XIV.] NEGLIGENCE IN ADOPTING PLAN. 315 
 
 is said: " But even if another mode might have been devised for 
 accomplishing the same result, the defendants cannot be charged 
 ^s wrong-doers for adopting the mode employed. As was said by 
 Johnson, P. J., in Ely v. Rochester, 26 Barb. 133-136 : ' The 
 power to do the act, when no limitation is placed upon it by the 
 sovereign authoritj^ by which it is granted, necessarily includes 
 the right of determining upon the plan and mode of doing it.' 
 This principle must apply, in the absence of negligence or bad 
 faith, to justify the decision of the defendants in respect to the 
 
 time when the work should be commenced "VVe find no 
 
 evidence in the case which would have warranted the jmyj in find- 
 ing that the defendants were guilty of negligence in any respect 
 in the construction or placing of the coffer-dam, and, without 
 such finding, there could be no recovery for the plaintiff"." 
 
 In Diamond Match Co. v. New Haven, 55 Conn. 510, 6 New 
 Eng. Rep. 174, it is ruled that where a municipality, acting under 
 the authority of an Act of the Legislature, changed the channel 
 of a river, all that could be required of the municipality was that 
 its officials should bring to the service reasonable care and judg- 
 ment, and that the professional men employed by it in planning 
 and superintending the work should possess all the knowledge 
 and skill that experience in such work would naturally give them, 
 and that when the municipal officials have employed a competent 
 engineer to plan such work, the municipality will not be respon- 
 sible for his oversights or misjudgments. 
 
 The City of Boston, while acting under Mass. Stat. 187-i, chap. 
 196, undertook to alter, deepen and widen a brook, and in so doing 
 enlarged the culverts under roads above the land of an owner, so 
 as to permit the water to flow down in excessive quantities, with- 
 out having made a provision to enlarge the outlet or to keep the 
 lower part of the stream unobstructed, to allow the excessive flow 
 of water to escape, whereby such owners property was damaged, 
 and it was adjudged liable for the injury.' 
 
 It is stated as the law in Van Pelt v. Davenport, 42 Iowa, 308, 
 20 Am. Rep. 622, that, as a city must act through the agency of 
 others, it is its duty to select a competent engineer. When such 
 selection is made, the city has in that regard discharged its duty, 
 
 ^Boston Belting Co. v. Boston, 149 Mass. 44.
 
 316 IMPOSED DUTIES, PERSONAL. [Part II, 
 
 and no direct negligence or omission is attributable to it. If a 
 competent engineer acts in good faith in drafting the plans of a 
 culvert, and honestly believes that he is making it large enough 
 to accomplish the desired purpose, then no negligence of the serv- 
 ant is attributable to the principal.* And therefore in an action 
 against a city for injuries caused by a defective sewer, or by a. 
 sewer of inadequate size, such original defect having been in the 
 plan, evidence by defendant is admissible to prove that reasonable 
 care was exercised in employing a competent person to prepare 
 the plan, and that ordinary care was used in seeing that he exer- 
 cised his skill in making such plan." 
 
 In Harrigan v. Wilmington (Del. Feb. 23, 1888), 11 Cent. Eep. 
 251, although a civil engineer was provided for in the city charter 
 " to devise all the means for carrying such improvements into 
 effect," it was ruled that the city would be liable " if the means 
 adopted to make an improvement, for instance, the building of a 
 sewer, were grossly and palpably inadequate for the purpose re- 
 quired, forbidding the idea of any sort of reasonable care and 
 diligence." 
 
 The question in Mills v. Brooklyn, 32 N. Y. 495, as stated by 
 Judge Denio, was : " The grievance of which the plaintifEs 
 complain is that suthcient sewerage to carry off the surface water 
 from their lot and house has not been provided. A sewer of cer- 
 tain capacity was built, but it was insufficient to carry off all the 
 water which came down in a rain storm and the plaintiffs' prem- 
 ises were to a certain extent unprotected. Their condition was 
 certainly no worse than it would have been if no sewer at all had 
 been constructed." It was there held that the corporation was 
 not liable. 
 
 In Barton v. Syracuse, 36 N. Y. 54, the court held that " in 
 the construction of sewers and in keeping them in repair munic- 
 ipal corporations act ministerially, and are bound to exercise 
 needful diligence, prudence and care." 
 
 In Lewenthal v. New ITorh, 61 Barb. 511, the action was for 
 
 'See also Ferguson v, Davis County, 57 Iowa, 601; Gould v. Topeka, 32 Kan. 
 
 485; Clemence v. Auburn, 66 N.Y. 334, 339; Uiicago v. Qallngher, 44 111. 
 
 295; Chicago v. Langlass, 66 111. 361; Prideaux v. Mineral Point, 43 Wis. 
 
 513; Perry v. Worcester, 6 Gray, 544. 
 ''Terre Haute v. Hudnut, 112 Ind. 542, 11 West. Rep. 333.
 
 Chap. XIY.] NEGLIGENCE IN ADOPTING PLAN. 317 
 
 overflow of plaintiff's house because the sewer " was and is of in- 
 sufficient size and capacity to carry off the water and refuse which 
 it was and is intended to do," and " is utterly insufficient to per- 
 form the work for which it was constructed ; " and the court held 
 the city liable, when notice of the insufficiency was shown to 
 have been given. 
 
 The case of S7nith v. New Yorlc, 06 N. Y. 205, related to a sewer 
 of sufficient capacity, but which was temporarily obstructed by a 
 deposit of mud and sand of which the corporation had no notice, 
 and an overflow injuring plaintiff resulted. It was held that the 
 corporation was liable for negligence alone, which could not be 
 predicated npon the facts established. 
 
 In McCarthy v. Syracuse, 46 N". Y. 194, the city was charged 
 with liability for an injury occurring through its neglect to repair 
 a sewer after a lapse of time warranting the presumption of notice 
 of the defect. 
 
 In Wilson v. New Yorh, 1 Denio, 5.98, the damages were oc- 
 casioned by surface water naturally falling upon the plaintiff's 
 premises, but prevented from flowing off by the changes made in 
 grading its streets by the city. It was held to owe no duty to its 
 citizen to furnish drainage for the water naturally collected on his 
 premises, and that no liability resulted from the change in the 
 street grade, made under statutory authority. It was further said: 
 *' The power of the corporation to make sewers and drains is 
 clear, but it is not their duty to make every sewer or drain wliich 
 may be desired by individuals or which a jury might even find to 
 be necessary and proper." But this case was questioned in Weet 
 V. Brockjyort, 16 N.Y. 161, note. 
 
 Lynch V. Neio YorTc, 76 N. Y. 60, was also a case where the 
 natural flow of surface water and drainage was obstructed by the 
 exercise of municipal power in grading, pitching and raising the 
 public streets, and the city was declared free from liability for 
 the damages incidentally occasioned to property in consequence 
 of the obstructed drainage and its omission to build drains for the 
 convenience of the citizen. 
 
 In Selfert v. Brooklyn, 101 N.Y. 136, 2 Cent. Rep. 135, Seifert 
 was the owner of a house and lot on Throop Avenue, between 
 Walton and Wallabout Streets, in the City of Brooklyn, and used
 
 318 IMPOSED DUTIES, PERSONAL. [Part II.. 
 
 a portion of the premises as a bakery. The Kent Avenue sewer 
 was located in Wallabout Street, and was the main sewer of a tract of 
 several hundred acres. There were many lateral sewers emptying 
 into the main sewer, which was originally of sufficient size to 
 carry off the water flowing into it, but by reason of the rapid 
 growth of the city became inadequate in case of heavy rain storms 
 to carry off all the water, and as a result became choked up, and a 
 flood of water was forced out which had repeatedly, during the 
 preceding six years, flooded Self ert's premises. The cellar was filled 
 with water which was forced out of the man-holes of the sewer. 
 There was testimony on the trial tending to show that plaintiff's 
 premises were on grade. The sewers were built on a plan adopted 
 by the proper department, and the sole cause of the flooding of 
 the premises was the inadequacy of the main sewer to carry off 
 the water from the lateral sewers emptying into it. The overflow 
 of the sewer in that vicinity had been for several years past a 
 matter of public notoriety, and the city officials had had repeated 
 notice of the damage done to plaintiff. The judge before whom 
 the cause was tried dismissed the complaint, holding that the city 
 was not liable when, in the exercise of a quasi judicial discretion, 
 the municipal corporation perhaps made a mistake as to the ca- 
 pacity of a sewer. Upon appeal by the plaintiff the general term 
 reversed this decision and granted a new trial. In disposing of 
 the appeal from the decision, the court recited the facts that cer- 
 tain officers of Brooklyn were constituted by statute commission- 
 ers of sewage and drainage,' with power to devise and frame a 
 plan of drainage and sewerage for the whole city upon a regular 
 system, and upon the adoption of a plan to proceed to construct 
 such of the drains and sewers as the public health, convenience or 
 interest shguld demand, or so much thereof as might be necessary; 
 and the commissioners were further empowered, whenever it be- 
 came necessary, to construct a drain or sewer in any street or 
 avenue for the purpose of preventing damage to property or to 
 
 ' Where tbe duty of supplying the city witli water is made by statute a mu- 
 nicipal duty, such commissioners are one of the instrumentalities of the 
 city government, so as to render the city liable for their negligent acts. 
 Pe'ttengill v. Tonkers, 116 N. Y. 558. But see Child v. Boston, 86 Mass. 
 42; Gushing v. Bedford, 125 Mass. 526, and Bulger v. Eden, 82 Me. 352, 
 9 L. R. A. 205, where ofHcers on whom such duties were imposed by 
 general law were held not to represent the city or render it liable for 
 their negligence.
 
 Chap. XI Y.J NEGLIGENCE IN ADOPTING PLAN. 319 
 
 abate a nuisance, and if the same was not in accordance witli any 
 plan already adopted, to construct temporary sewers in certain 
 places in a manner to avoid such damages or abate such nuisance. 
 Under the authority conferred by these Acts, the commissioners^ 
 prior to the year 1868, established a certain drainage district cov- 
 ering a surface of nearly twenty-three hundred acres of land, and 
 embracing within its limits a teriitory not theretofore drained over 
 the lands of the plaintiff, situated in the same district, and which 
 contemplated the construction of a main sewer through certain 
 avenues and streets into which it was designed that lateral sewers 
 intersecting the whole district should empty, as they should be 
 from time to time thereafter constructed for the convenience of 
 the people desiring them. In pursuance of this plan the main 
 sewer referred to was built in 1868, and subsequent to that time 
 various lateral sewers were, from time to time, between 1868 and 
 the time of the trial in 1884, constructed and connected with said 
 main sewer. 
 
 Within a short time after the completion of the main sewer, 
 actual use demonstrated that it had not sufficient capacity to 
 cany off the accumulations of water and matter turned into it, 
 and the result was that at times of heavy rain and melting snow 
 the collected sewage, being obstructed in its flow, was forced through 
 the man-holes and inundated the district in which plaintiff resided, 
 inflicting serious injury to his property. These inundations com- 
 menced nearly ten years previous to the trial and increased in fre- 
 quency and severity as new lateral sewers were from time to time 
 built and connected with the main trunk, until finally they occurred 
 as often as eight or ten times a year, and became well known to 
 the officers of the corporation. Notwithstanding this fact, the 
 corporation continued to build and attach lateral sewers to the 
 main trunk, and increased from year to year the evil produced by 
 the defects of the original plan. The court held that these facts 
 did not bring the case within the rule securing the immunity of a 
 municipal corporation from liability for damages occasioned to 
 those for whose benefit an improvement is instituted, by reason of 
 the insufficiency of the plan adopted to wholly relieve their wants, 
 or on account of a neglect of the municipality to exercise its power 
 in making desired improvements and other like circumstances,
 
 320 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 wliich was said to be quite clearly established bj the cases. The lia- 
 bility in such cases has been generally, if not always, predicated 
 upon the duty which the corporation owed its citizens to exercise 
 the power conferred upon it to build streets, sewers, etc., for the 
 convenience and benefit of its property owners, and its exemption 
 from liability was based upon the limitations necessarily surround- 
 ing the exercise of such power and the judicial character of the 
 functions employed in performing the duty. The court placed 
 the liability of the city in this case upon the ground that munici- 
 pal corporations had invariably been held liable for damages 
 occasioned by acts resulting in the creation of public or private 
 nuisances, or for an unlawful entry upon the premises of another, 
 whereby injury to his property had been occasioned.' This prin- 
 ciple has been uniformly applied to the acts of such corporations 
 in constructing streets, sewers, drains and gutters, whereby the 
 surface water of a large territory which did not naturally flow 
 in that direction was gathered into a body and thus precipi- 
 tated upon the premises of an individual, occasioning damages 
 thereto." 
 
 The court also stated as a ground of liability that the exercise of a 
 judicial or discretionary power by a municipal corporation, which 
 results in a direct and physical injury to the property of an indi- 
 vidual, and which, from its nature, is liable to be repeated and 
 continuous but is remediable by a change of plan or the adoption 
 of prudential measures, renders the corporation liable for such 
 damages as occur in consequence of its continuance of the original 
 cause after notice, and an omission to adopt such remedial meas- 
 ures as experience has shown to be necessary and proper ; and 
 that, although a corporation may have been under no original obli- 
 gation to citizens to build a sewer at the time and in the manner 
 it did, yet, having exercised the power to do so and thereby created 
 a private nuisance on his premises, it incurred a duty, having cre- 
 ated the necessity for its exercise and having the power to perform 
 it, of adopting and executing such measures as should abate the 
 
 •Citing Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 37 L . ed. 
 
 739. See also two late cases between tke same parties, 137 U. S. 568, 34 
 
 L. ed. 784, decided Jan. 5, 1891. 
 ^Bprnes v. Cohoes, 67 N. Y. 204; Basfable v. Syracuse, 8 Hun, 587, 72 N. Y. 
 
 64; Noonan v. Albany, 79 N. Y. 475; Beach v. Elmira, 23 Hun, 158; Field 
 
 V. West Orange, 36 N. J. Eq. 120, 29 Alb. L. J. 397.
 
 Chap. XIY.] NEGLIGENCE IN ADOPTING PLAN. 321 
 
 nuisance and obviate damao;e;' that it is a principle of the fun- 
 damental law that the property of individuals cannot be taken for 
 public use except upon the condition that just compensation be 
 made therefor, and any statute conferring power upon a munici- 
 pal body, the exercise of which results in the appropriation, de- 
 struction or physical injury of private property by such body, is 
 inoperative and ineffectual to protect it from liability for the re- 
 sultant damages, unless some adequate provision is contained in 
 the statute for making such compensation. The immunity which 
 extends to the consequences following the exercise of judicial or 
 discretionary power, by a municipal body or other functionary, 
 presupposes that such consequences are lawful in their character, 
 and that the act performed might in some manner be lawfully au- 
 thorized." When such power can be exercised so as not to create 
 a nuisance, and does not require the appropriation of private prop- 
 erty to effectuate it, an unlawful exercise of the right will not be 
 inferred from the gi'ant. "Where, however, the acts done are of 
 such a nature as to constitute a positive invasion of the individual 
 rights guaranteed by the Constitution, legislative sanction is inef- 
 fectual as a protection to the persons or corporation performing 
 such acts from responsibility for their consequences.^ It has been 
 sometimes suggested that the principle illustrated in the maxim. 
 Solus pojouli est sujprema lex, may be applied to and will shield 
 the perpetrators from liability for damages arising through the 
 exercise of such power by a municipal corporation ; but the an- 
 thorities prove that this maxim cannot be thus invoked.* Indeed, 
 the cases Avhere such a doctrine can be properly applied must from 
 the very nature of the principle be confined to circumstances of 
 sudden emergency, threatening disaster, public calamity, and pre- 
 cluding a resort to remedies requiring time and deliberation." It 
 is suggested in the latter case that even in such an event, under 
 
 ^Phinizy v. Augusta, 47 Ga. 263; Byrnes v. Colioes, 67 N. Y. 204. See Van 
 Pelt V. Davenport, 42 Iowa, 302; Crawfordsmlle v. Bond, 96 Ind. 236: 
 Evansville v. Decker, 84 Ind. 335; Fort Wayne v. Coombs, 107 Ind. 75, 5 
 West. Rep. 233. 
 
 ^Woodcock V. Calais, 66 Me. 234; E^tes v. China, 56 Me. 407; Franklin Wharf 
 Co. V. Portland, 67 Me. 46; Locks db Canals v. Lowell, 7 Gray, 223. 
 
 ^Radcliff's Exrs. v. Brooklyn, 4 N. Y. 195. 
 
 * Wilson V. New York, 1 Denio, 595. 
 
 « Whart. Legal Max. No. 98; New York v. L<yrd, 17 Wend. 285. 
 21
 
 322 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 the principles of the Constitution the public would be liable for 
 the damages inflicted ; but in any case the theory that a municipal 
 corporation has the right in prosecuting a scheme of improvements 
 to appropriate without compensation, either designedly or inad- 
 vertently, the permanent or occasional occupation of a citizen's 
 property, even though for the public benefit, cannot be supported 
 upon the principle referred to. If the use of such property is re- 
 quired for public purposes, the Constitution points out the way in 
 which it may be acquired when there is no such imminency in the 
 danger apprehended as precludes a resort to the remedy provided, 
 and the only mode by which it can be lawfully taken in such cases 
 is that afforded by the right of eminent domain. 
 
 The decision in Vincennes v. Bichards, 23 Ind. 381, turned 
 upon this distinction between incidental injury and the actual in- 
 vasion of the absolute right of property.' 
 
 Seymour v. Cummins, 119 Ind. 148, 5 L. R. A. 126, was an 
 action for damages for the construction of an open ditch on the 
 ways or streets on two sides of a residence property owned by the 
 decedent within the City of Seymour. The manner in which the 
 decedent's real estate was depreciated in value, rendered uninhab- 
 itable, and ingress and egress to and from it was obstructed, was 
 by a ditch ten feet wide and three feet deep; the ditch was dug so 
 near to the line of his lot that the soil of his lot from time to time 
 fell into the ditch; and the corrupt, filthy and poisonous water from 
 the swamp and other surface water and sewage were turned in from 
 time to time by the city, and also sewage from woolen-mills is 
 turned into the ditch, and the fall was insufficient to cany it off, and 
 it remained in the ditch as stagnant water, and poisonous and un- 
 wholesome vapors and smells permeated and rendered impure the 
 air over his lot, and within his residence property, and malaria and 
 disease were generated thereby, and the house and premises were 
 rendered untenantable. The ditch was constructed in 1877, and had 
 ever since been maintained by the city in the same condition, and 
 it was a permanent one, and was not the natural outlet for such 
 
 ' See AsJiley v. Port Huron, 35 Mich. 296; JVevins v. Peoria, 41 111. 502; Ati- 
 rora v. Oillett, 56 111. 132; Aurora v. Reed, 57 111. 30; Alton v, Hope, 68 
 111. 167; Jasksonville v. Lambert, 62 111. 519; Pettigreto v. Evansville, 25 
 Wis. 223; Merrifieldv. Worcester, 110 Mass. 216; Locks & Canals y. Lowell, 
 7 Gray, 223; Franklin v. Fisk, 13 Allen, 211; Haskell v. New Bedfordy 
 108 Mass. 208.
 
 Chap. XIV.] NEGLIGENCE IN ADOPTING PLAN. 323 
 
 drainage, which should have been by underground sewerage, and 
 not by an open drain. The injury, it was evident, resulted, Tiot 
 from the manner in which the work was performed, and ditch 
 constructed, but the action was for damages sustained by reason of 
 the ditch itself, located where it was, for the drainage of the pond^ 
 surface water and sewage, and the injury resulting from the con- 
 struction of a ditch where this was located, and by reason of its be- 
 ing maintained as an open ditch, and allowing, stagnant, corrupt, 
 filthy and poisonous waters to remain therein, and obstructing 
 plaintiif's ingress and egress to and from his premises, and causing 
 the soil of his lot to cave and fall into the ditch, and it was decided 
 that for such injury the city was liable.' 
 
 It was said that a municipal corporation has general supervision 
 of the drainage of the city, and is liable for defective plans for 
 drainage. If a city adopt a proper plan of drainage, and let 
 a contract for the doing of the work and construction of the 
 drain, the contractor to use his own method and means for the 
 construction of the drain, and damages result by reason of the 
 negligence of the contractor in doing the work, the city would 
 not be liable f but when the city adopts a plan of sewerage or 
 drainage, and contracts for its construction, and it is constructed 
 in accordance with the plan so adopted by the city, and injury 
 is caused to a property owner by reason of the negligence of 
 the city in devising the plan and the construction of improper 
 drainage creating a nuisance, obstructing private ways or public 
 ways in which the pi'operty owner has a special interest, the city 
 is liable. The answer in this case, it appears, did not aver but that 
 the contractor did the work and constructed the drain on the line 
 and in the manner which the city directed and contracted it should 
 be constructed, nor did it controvert the fact that the city had 
 maintained it in such manner, nor that all the injuries resulted to 
 the plaintiff which were alleged. Indeed, it controverted no aver- 
 
 ' See also Evansville v. Decker, 84 Ind. 325; Itosn v. Thompson, 78 Ind. 90; 
 Terre Haute v. Hudnut, 112 Ind. 543, 11 West. Rep. 333; Wabash, St. L. 
 & P. B. Co. V. Farver, 111 Ind. 195, 9 West. Rep. 621. 
 
 ^Lancaster Ave. Imp. Co. v. Rhoads, 116 Pa. 377, 8 Cent. Rep. 214. See 
 Painter V. Pittsburgh, AQ Pa. 213; Susquehanna Depot v. Simmons. 112 
 Pa. 384. 3 Cent. Rep. 140; Reed v. AUer/heny, 79 Pa. 300; Erie v. Caulkins, 
 85 Pa. 247; Hunt v. Pennsylvania R. Co. 51 Pa. 475; Allen v. Willard, 57 
 Pa. 374.
 
 324 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 ment, but sought to avoid liability on the ground that the ditch was 
 constructed under a contract with a third party. But it was held 
 that a city cannot avoid liability in this way.' A system of sewer- 
 age is largely within the discretion of the city government. It can- 
 not devise, as we have seen, a system which will involve the actual 
 taking of property without compensation, nor can it create a nui- 
 sance, but short of this it may in good faith and with a reasonabl}' 
 enlightened knowledge exercise its discretion, and it is not neces- 
 sary that the system of sewerage adopted shall extend to all parts 
 of the city. What sewerage is necessary for the w^elfare of the 
 city and health of its inhabitants is a political question and to be 
 determined by the legislative authority of the city under its grant 
 of power." 
 
 » See Denver v. Rhodes, 9 Colo. 554; Wood, Mast, and S. p. 605, § 13; Wood, 
 
 Nuis. 81. 
 ^St. Louis Bridge Co. v. People, 128 111. 422, 15 West. Rep. 155.
 
 I 
 
 CHArXER XV. 
 
 NEGLIGENCE OF TOWI^S AND CITIES IN CONTROL OF SURFACE 
 
 WATER. 
 
 Sec. 32. Under What Circumstances City will be Liable. 
 
 Sec. 33. The Rule of Liability in Neio England. 
 
 Sec. 34. Limited Liability of Unincorporated Town or Village. 
 
 Section 32.— Under What Circumstances City will 
 
 he Liable. 
 
 From the foregoing review it is evident that, where the city 
 plan of street and sewer improvement, faithfully carried out, re- 
 sults in an unlawful entry upon the premises of another, causing 
 injury to his property, which from its nature is liable to be con- 
 tinuous, but is remediable by a change of plan or by the adoption 
 of prudential measures, the city will be liable, unless such change 
 of plan or measures of protection are adopted with reasonable 
 promptness on notice of the injury. Or, if the injury is one to be 
 reasonably anticipated or discoverable by the exercise of due care, 
 actual notice is not necessary.' 
 
 A city is liable if it undertakes to collect water in one channel 
 and wrongfully pours it upon another's land.* This principle has 
 been uniformly applied to the acts of such corporations in con- 
 structing streets, sewers, drains and gutters, whereby the surface 
 water of a large territory which did not naturally flow in that di- 
 rection was gathered into a body and was precipitated upon the 
 premises of an individual, occasioning damages thereto.* A mu- 
 nicipal corporation has no more right than a private person to 
 
 ^Seifert v. Brooklyn, 101 N. Y. 136, 2 Cent. Rep. 135; Baltimore & P. R. Co 
 V. Fifth Baptist Church, 108 U. S. 317, 27 L. ed. 739; Van Pelt v. Daven- 
 port, 42 Iowa, 308; Fort Wayne v. Coombs, 107 Ind. 75, 5 West. Rep. 229. 
 
 *Lipes V. Hand, 104 Ind. 503, 2 West. Rep. 314; Emnsville v. Decker, 84 Ind. 
 325, 43 Am. Rep. 86; Weis v. Madison, 75 Ind. 241, 39 Am. Rep. 135 ; 
 Cairo & V. B. Co. v. Stevens, 73 Ind. 278; Templeion v. Voshloe, 72 Ind. 
 134; Bice v. Emiisville, 108 Ind. 7, 6 West. Rep. 244. 
 
 'Byrnes v. Cohoes, 67 N. Y. 204; Bastable v. Syracuse, 8 Hun, 587, 72 N. Y. 
 64; JSfoonnn v. Albany, 79 N. Y. 475; Bench v. Elm.ira, 22 Hun, 158; 
 Field V. West Orange, 36 N. J. Eq. 120, 29 Alb. L. J. 397.
 
 326 niPOSED DUTIES, PERSONAL. [Part II. 
 
 collect surface water into drains and to cast it in a volume upon 
 the land of an adjoining owner, although it formerly flowed over 
 such lands,' "Where a municipality puts into execution a scheme 
 of improvement by which surface water collected from a large 
 area is prevented from following the grades of the streets, and is 
 carried by artificial means from where it would otherwise be dis- 
 charged, and made to flow on to the land of one person in ease of 
 the lands of others, there an actionable wrong is committed." 
 Where the natural flow of surface water and drainage was ob- 
 structed, the city is liable for the damage caused thereby." A 
 municipal corporation is liable to one upon whose lands it con- 
 ducts surface water wrongfully diverted from its natural channel,* 
 and for discharging its drainage or sewage upon private property.'" 
 So if quantities of earth were thrown upon and permitted to con- 
 tinue, so that, in times of rain, mud and water were driven on 
 
 ^Rycldicki v. St. Louis, 98 Mo. 497, 4 L. R. A. 594. 
 
 ^Miller v. Morristoicn (N. J. June 30, 1890) 20 Atl. Rep. 61. 
 
 ^Lyncli V. New York, 76 N. Y. 60; Seifert v. Brooklyn, 101 N. Y. 136, 2 Cent. 
 Rep. 136, 137; New York v. Furze, 3 Hill, 612; Bartony. Syracuse, 37 
 Barb. 292; Nims v. Troy, 59 N. Y. 500. 
 
 ^Clark Y. Rochester, 43 Hun, 271; Evansvillev. Decker, 84 Ind. 325; Craw- 
 fordsville v. Bond, 96 Ind. 236; Rice v. Evansville, 108 Ind. 7, 6 West. Rep. 
 242; Terre Haute v. Hudnut, 112 Ind. 542-548, 11 West. Rep. 333; Pyev. 
 Mankato, 36 Minn. 373- Mills v. Brooklyn, 32 N. Y. 489; Lynch v. New 
 York, 76 N. Y. 60; O'Brien v. St. Paul, 25 Minn. 332; Ashley v. Port 
 Huron, 35 Mich. 296; Bastable v. Syracuse, 8 Hun, 587, 72 N. Y. 64; Smith 
 V. Atlanta, 75 6a. 110; Edmondson v. Moherly, 98 Mo. 523; Jutte v. Hughes, 
 67 N. Y. 268; Moran v. McGlearns, 63 Barb. 185; Waffle v. New York C. 
 R Co. 58 Barb. 513; Brayton v. Fall River, 113 Mass. 218; AttyOen. v. 
 Leeds Corp. L. R. 5 Ch. 583; Weet v. Brockport, 16 N. Y. 161, note; 
 Haskell v. New Bedford, 108 Mass. 208; Troy v. Coleman, 58 Ala. 570; 
 Simmer v. St. Paul, 23 Minn. 408; Rochester White Lead Go. v. Rochester, 
 3 N. Y. 466; Richardson v. Boston, 60 U. S. 19 How. 270, 15 L. ed. 642; 
 Perry Y.Worcester, 6 Gray, 544; Sleight v. Kingston, 11 Hun, 594; Locks 
 & Canals v. Lowell, 7 Gray, 223; Union Springs v. Jones, 58 Ala. 654. 
 
 *Sidlivanv. Phillips, 110 Ind. 320, 9 West. Rep. 49; Ricev. Flint, 67 Mich. 401; 
 Pyev. Mankato, 36 'Kinn.^l^; LeirenthalY. New York, 61 Barb. 511, 5 Lans. 
 532; Woodicard v. Worcester, 121 Mass. 245; Ruck v. Williams, 3 Hurl. & N. 
 308; Jacksonville v. Lambert, 62 111. 519; Butler v. Thomasville, 74 Ga. 570; 
 Noonan v. Albany, 79 N. Y. 475; Byrnes v. Cohoes. 67 N. Y. 204; Rich- 
 ardson V. Boston, 60 U. S. 19 How. 270, 15 L. ed. 642; Sleight v. Kingston, 
 11 Hun, 594; Barton v. Syracuse, 37 Barb. 292, 36 N. Y. 54; Bastable v. 
 Syracuse, 8 Hun, 587, 72 N. Y. 64; Beach v. Elmira, 22 Hun, 158; Rochester 
 White Lead Co. v. Rochester, 3 N. Y. 466; Perry v. Worcester, 6 Gray, 544; 
 Ashley v. Port Huron, 35 Mich. 296; Story v. Neio York Elevated R. Co. 90 
 N. Y. 122; Haskell v. Neio Bedford, 108 Mass. 208 ; Stock v. Boston, 149 Mass. 
 410- Atty-Oen. v. Leeds Corp. L. R. 5 Ch. 583; Field v. West Orange, 36 
 N. J. Eq. 120, 29 Alb. L. J. 397; Hitchins v. Frostburg, 68 Md. 100, 10 
 Cent. Rep. 539; Rowe v. Portsmouth, 56 N. H. 291.
 
 Chap. XY.] UNDKK WHAT CIRCUMSTANCES CITY LIABLE. 327 
 
 plaintiff's messuage, he was held entitled to sue the corporation 
 for damages.' 
 
 While mere neglect, under ordinayy circumstances, to order an 
 improvement to be made, will not create liability where there is 
 any discretion in the matter reposed in the city, yet any plan 
 adopted and entered upon, which will create a public or private 
 nuisance, unless certain additional improvements are made, will 
 render the city liable for a neglect to make the latter.^ It will be 
 liable also where the result of the work is the creation of a public 
 or private nuisance. 
 
 Although a municipal corporation has the right, under its 
 charter, to establish a system of grading and drainage, yet this 
 should be done so that it will not prove a nuisance to the citizens.' 
 A municipal corporation has no more authority than an individual 
 to gather the surface water from its lands or streets into an arti- 
 licial channel and discharge it upon the lands of another ; nor has 
 it any immunity from legal responsibility for creating or main- 
 taining nuisances.* The outfall of a sewer must be so constructed 
 that it will not become a private or a public nuisance.* A gen- 
 eral grant of power in a municipal charter to establish a sewer 
 system affords no justification for the action of the authorities in 
 unnecessarily exercising the power so as to create a nuisance in- 
 jurious to private rights of property.' If it drain water into a 
 private canal to its injury,' or into a private dock to obstruct nav- 
 igation,' or into a mill race,* it wall be liable. The same liability 
 
 ^Farrell v. London, 12 U. C. Q. B. 343. See also Perdue v. Chinquacoumj 
 Twp. 25 U. C. Q. B. 61. 
 
 "^Phinizy v. Augusta, 47 Ga. 263; Byrnes v. Cohoes, 67 N. Y. 204; Seifert y 
 Brooklyn, 101 N. Y. 136, 3 Cent. Rep. 135; Crawfordsville v. Bond, 96 
 Ind. 2b6; Ellis v. Iowa City, 29 Iowa, 229; Aurora v. Love, 93 111. 521; 
 Cummins v. Seymour, 79 lud. 491. 
 
 ^SmitJi V. Atlanta, 75 Ga. 110. 
 
 *Weet V. Brockport, 16 N. Y. 161, 172, note; Byrnes y. Cohoes, 67 N. Y. 204; 
 Haskell Y. New Bedfcrrd, 108 Mass. 208; Atty-Gen. v. Leeds Corp. L R 5 
 Ch. 583; Seifert v. Brooklyn, 101 N. Y. 136. 2 Cent. Rep. 135. 
 
 ^Franklin Wharf Co. v. Portland, 67 Me. 46, 24 Am. Rep. 1 ; Haskell v. New 
 Bedford, 108 Mass. 214; Brayton v. Fall River, 113 Mass. 218, 18 Am 
 Rep. 470; State v. Portland, 74 Me. 268, 43 Am. Rep. 586, 
 
 ^Edmondson v. Moberly, 98 Mo. 523. 
 
 "^Ijocks & Canals v. Lowell, 7 Gray, 228. 
 
 ^ Clark V. Peckham, 9 R. I. 458; Haskell v. New Bedford, 108 Mass. 208. 
 
 ^Columbus V. Hydraulic Woolen Mills Co. 33 Ind. 435; Elgin Hydraulic Co v 
 Elgin, 74 111. 433.
 
 328 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 will follow where, after the completion of the attempted improve- 
 ment, actual use demonstrates that its insufficiency for the purpose 
 intended causes injiiry to the property of the citizen, where notice 
 of its failure and this result is shown to have been given to the 
 city officials having charge of such matters, or that a sufficient 
 time has elapsed since such failure was demonstrated to charge the 
 city with notice. 
 
 A municipality is liable for the flooding of private property by 
 an insufficient sewer, provided it had notice of the defect.' In 
 Fort Wayne v. Coombs^ 107 Ind. 75, 5 West. Rep. 229, such no- 
 tice is held unnecessary, where the neglect had continued for two 
 years. A still shorter period has often been held sufficient to 
 charge a city with notice of defective work.' 
 
 If in the exercise of its discretionary powers a municipal corpo- 
 ration is negligent, it is liable to the same extent as any other 
 corporation, or as a public officer or as an individual, for a similar 
 injury.^ 
 
 Liability will also be incurred for a failure, resulting in an in- 
 jury to property, to carry out with reasonable care the plan 
 adopted.'' The work of constructing gutters, drains and sewers 
 is ministerial ; and when, as is usually the case, the undertaking is 
 a corporate one, the corporation is responsible in a civil action for 
 damages caused by the careless or unskillful manner of perform- 
 ing the work.' Although a municipal corporation is not liable 
 for failure to exercise discretionary power to build culverts and 
 sewers, if it undertakes to exercise that power it is bound to exer- 
 cise reasonable care in the execution of the work, and is liable for 
 damages occasioned by the negligent construction of such work,* 
 
 ^Earrigan v. Wilmington (Del. Feb. 21, 1888) 11 Cent. Rep. 251; HitcMns v. 
 Frostburg, fi8 Md. 100, 10 Cent. Rep. 539. 
 
 ^Madison y. Baker, 103 Ind. 4, 1 West. Rep. 116; Cummins v. Seymour, 7& 
 Ind. 491. 
 
 ^Bastable v. Syracuse, 8 Hun, 587, 72 N. Y. 64; Hickolc v. Plattshurqh, 16 N. 
 Y. 161; Robinson v. Chamberlain, 34 N. Y. 389; Moran v. McClearns, 63 
 Barb. 195; Neto York v. Furze, 3 Hill, 612; Rochester White Lead Co. v. 
 Rochester S'N.YAGG; Babcock v. Buffalo, 1 Sheld. 317, 56N.Y. 268; Indian- 
 apolis V. Huffer, 30 Ind. 235; Barnes y. District of Columbia, 91 U. S. 540, 
 23 L. ed. 440; Montgomery v. Gilmer, 33 Ala. 116; Logaiispori v. Wright, 
 25 Ind. 512; Wallace v, Muscatine, 4 Greene (Iowa) 373; Barton v. Syra- 
 cuse, 37 Barb. 292, 36 N. Y. 54. 
 
 ^Denver v. Rhodes, 9 Colo. 554. 
 
 ^Johnston v. District of CoUmbia, 118 U. S. 19, 30 L. ed. 75. 
 
 ^Frostburg v. HitcMns, 70 Md. 56.
 
 Chap. XV.] UNDER WHAT CIRCUMSTANCES CITY LIABLE. 329 
 
 While a city or town is not liable in tort for injuries caused bj the 
 reasonable planning of a sewer laid out by the board of aldermen, it 
 is liable for the negligence of its servants in carrying out the plan 
 in constructing the sewer.' Where the duty as respects drains 
 and seM'^ers ceases to be judicial, or quasi judicial, and becomes 
 ministerial, then, although there be no statute giving the action, a 
 municipal corporation is liable for the negligent discharge or the 
 negligent omission to discharge such duty, resulting in an injury 
 to others.^ A municipality constructing drains and sewei-s when 
 under no obligation to do so is liable for damages M'here the woi'k 
 is performed negligently or the management thereof is negligent.* 
 If the city caused the sewer to be constructed, and adopted it and 
 used it, it can make no difference who constructed it', or controlled 
 its construction, or owned the land on which it was built. It is 
 enough that the city adopted it and used it.* 
 
 Whatever may be the duty of the municipal body in providing 
 sewerage and a proj^er channel for the passage of water, if the 
 city undertakes the building of a sewer, it becomes its duty to 
 keep it in proper repair, and it is liable for any neglect in its 
 proper maintenance, or for any changes or alterations made by the 
 city or its authority, or with the knowledge of the city officials, 
 in its structure, by means of which the waters are obstructed in 
 their passage, and damage ensues to others." 
 
 No notice to a city of the defect in a sewer is necessary to fix 
 its liability. Its duty to keep its sewers in repair is not performed 
 by waiting to be notified by citizens that they are out of repair 
 and repairing them only when the attention of the officials is called 
 
 ^ Stock V. Boston, 149 Mass. 410. 
 
 ^Barton v. Syracuse, 36 N. Y. 54, 37 Barb. 293; Ghild v. Boston, 4 Allen, 41; 
 Emery \. Lowell, 104 Mass. 13; McGregor v. Boyle, 34 Iowa, 208. Com- 
 pare Dermont v. Detroit, 4 Mich. 435; Montgomery v. Gilmer, 33 Ala. 116; 
 Gilmer V. Montgomery, 26 Ala. 665; Jones v. Neio Haven, 34 Conn. 1- 
 Logansport v. Wright, 25 Ind. 512; 2 Dillon, Mun. Corp. 930. 
 
 ^Philadelphia, W. & B. R. Co. v. Davis, 08 Md. 281, 10 Cent. Rep. 553. 
 
 * Aurora v. Colshire, 55 Ind. 484; Fort Wayne v. Coombs, 107 Ind. 75, 5 West 
 Rep. 229. 
 
 ^Rochester White Lead Co. v. Rochester, 3 N. Y. 463; Barton v. Syracuse, 37 
 Barb. 292, affirmed, 36 N. Y. 54; McCarthy v. Syracuse, 46 N. Y. 194; 
 Eines v. Lockport, 50 N.Y. 236; New York v. Furze, 3 Hill, 612; Mills v' 
 Brooklyn, 32 N.Y. 489; Ft. Wayne v. Cooinbs, 107 Ind. 75, 5 West. Rep. 
 229; Emery V. Lowell, 104 Mass. 15; Child y. Boston, 4 Allen, 41; Blood 
 V. Bangor, 66 Me. 154; Darling v. Bangor, 68 Me. llO; Estes v.'china 
 56 Me. 407.
 
 330 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 to the damage they have occasioned by having become dilapidated 
 or obstructed, but it involves the exercise of reasonable care and 
 watchfulness in ascertaining their condition from time to time and 
 preventing them from becoming dilapidated or obstructed.' 
 
 While a municipal corporation cannot be compelled to provide 
 waterways of sufficient capacity to carry off all surface waters 
 likely to accumulate in the streets, yet such as the city has pro- 
 vided it is bound to keep in repair and free from obstructions, so 
 that, up to their original capacity, they shall be efficient." If the 
 sewer is negligently permitted to become obstructed or filled up 
 so that it causes the water to back-flow into cellars connected with 
 it, there is a liability therefor on the part of the municipal cor- 
 poration having the control of it.' Although a municipal cor- 
 poration is not liable for damages resulting from a lawful exercise 
 of its discretionary power to plan and construct sewers and other 
 improvements, in the first instance,* or for consequential injury, 
 such as the flowing of waste water upon a citizen's land,^ or 
 for not providing sufficient sewerage for the draining of the 
 premises of a resident,' yet, having undertaken their construction, 
 it is liable for any special injury sustained by others from the 
 negligent or unskillful exercise of its authority, or the failure to 
 keep them in repair or free from obstruction.' 
 
 ^McCarthy v. Syracuse, 46 N.T. 194. 
 
 ^Denver v. Rhodes, 9 Colo. 554. 
 
 ^Barton v. Syracuse, 37 Barb. 273, 36 N. Y. 54; New York v. Furze, 3 Hill, 
 613; Wilson v. New York, 1 Denio, 595; Mills v. Brooklyn, 32 N. Y. 489. 
 
 *Fair V. Philadelphia, 88 Pa. 209, 33 Am. Rep. 455; Mills v. Brooklyn, 33 
 N Y 489; Smith v. NeiD York, 66 N. Y. 295, 23 Am. Rep. 53; (7a?T v. 
 Northern Liberties. 35 Pa. 324; Grant v. Erie, 69 Pa. 420, 8 Am. Rep. 272. 
 
 ^Vincennes v. Richards, 23 Ind. 381. 
 
 ^Mills V. Brooklyn, 32 N.Y. 489; Garr v. Northern Liberties, 35 Pa. 324. 
 
 ''Do/iohue V. Neio York, 3 Daly, 65; Rochester White Lead Co. v. Rochester, 3 
 N.Y. 464; Barton v. Syracuse. 37 Barb. 292, 36 N. Y. 54; Nims v. Troy, 
 59 N. Y. 500; McCarthy \. Syracuse, 46 N. Y. 194; Leicenthalv. New 
 York, 61 Barb. 511, 5 Lans. 532; Reeves v. Toronto, 21 U. C. Q. B. 157; 
 Clark V. Beckham, 9 R. I. 455; Bixon v. Baker, 65 111. 518; Logansport v. 
 Wright, 25 Ind. 513; Nem York v. Furze, 3 Hill, 612; Wilson v. New York, 
 1 Denio, 601; Hutson v. New York, 9 N. Y. 163; Meares v. Wilmington, 9 
 Ired. L. 73; Hortonv. Nashville, 4 Lea, 39, 40 Am. Rep. 4; Mills v. Brook- 
 lyn, 32 N. Y. 489; Carr v. Northern Liberties, 35 Pa. 324; Atchison v. 
 Challiss, 9 Kan. 603; Judge v. Meriden, 38 Conn. 90; McGregor v. Boyle, 
 34 Iowa, 268; Denver v. Gapeli, 4 Colo. 25, 34 Am. Rep. 63; Eastman v. 
 Meredith. 36 N. H. 284; Lansing v. Toolan, 37 Mich. 152; Marquette v. 
 Gleary, Id. 296; Darling v. Bangor, 68 Me. 112.
 
 ■Chap. Xy.] UNDER WHAT CIKCUMSTi ■'.yCES CITY LIABLE. 331 
 
 After sewers are constructed, the di ty of tlie city to keep them 
 in repair is ministerial, and for an omissior.*- to perform that duty 
 it is liable.' The city is liable for an injury cpcurring through 
 its neglect to repair a sewer after a lapse of tiin^ warranting the 
 presumption of notice of the defect.' The lav>^*requires it to 
 use ordinary care and watchfulness to prevent suea ii^jprovement 
 from falling into gradual decay. It must periodically inspect its 
 «ewers for the protection of the public, and it cannot relieve it- 
 self from such duties by the manner in which it constrncts them.' 
 But where there has been no negligence, as where the choking 
 with sand of a sewer was unexpected, there is no liability.'* 
 
 Where a sewer has been adopted and used b}' a city, and its 
 citizens have been expressly or implicitly authorized to connect 
 their drains with it, if the city negligently permits it to get out of 
 repair, it must pay the damages thereby caused to one so using it 
 who is not himself in fault.* A municipal corporation is liable 
 for negligence in the ministerial duty to keep its sewers in repair 
 as respects persons whose estates are connected therewith by priv- 
 ate drains, in consequence of which such persons sustain injuries 
 which would have been avoided had the sewers been kept in a 
 proper condition.' 
 
 Under the decisions in some of the States, where the result of 
 the attempted improvement creates a nuisance, and there has been 
 want of care in the adoption of the plan, the imperfection in the 
 conception of which causes a nuisance, this negligence, considered 
 as a want of the exercise in good faith of the discretion, properly 
 informed, which it was the duty of the council to use, will be as- 
 signed as the ground of liability. It may be true that the liability 
 
 ^Uines v. Lockport, 50 N. Y. 236; Seifert v. Brooklyn, 101 N.Y. 186. 2 Cent 
 
 Rep. 136, 138; Barton v. Syracuse, 37 Barb. 292, 36 N. Y. 54. 
 ^McCarthy v. Syracuse, 46 N. Y. 194; Seifert v. Brooklyn, 101 N. Y. 136, 2 
 
 Cent. Rep. 135. 
 ^Indianapolis v. Scott, 72 Ind. 196; Norristown v. Moyer, 67 Pa. 355; Rapho 
 
 Twp. V. Moore, 68 Pa. 404; Todd v. Troy, 61 N. Y. 506; Logansportv. 
 
 Justice, 74 Ind. 378; Ft. Wayne v. Coombs, 107 Ind. 75, 5 West. Rep. 230. 
 *8mith V. New York, 66 N. Y. 295, 4 Hun, 627; Wheelers. Worcester, 10 
 
 Allen, 591. 
 
 *Child V. Boston, 4 Allen, 41; Barton v. Syracuse, 37 Barb. 292, 36 N. Y. 54, 
 
 Montgomery v. Gilmer, 33 Ala. 116. 
 *Child V. Boston, 4 Allen, 41; Lloyd v. New York, 5 N. Y. 369; Kra?i2 v 
 
 Baltimore, 64 Md. 491, 3 Cent. Rep. 629.
 
 I 
 332 imposji,*? duties, personal. [Part II. 
 
 would follow, although r.pon a different ground, where the result 
 was a mere invasion^!' the rights of property.' 
 
 All of the au/horities, it is believed, agree that the adoption 
 and execution cv*^a plan of improvement that practically results 
 in the approiK iation, destruction or material physical injury of 
 private prc^-jert}^, without resort to the legal methods of condem- 
 nation and compensation for such property, will render the city 
 liable. 
 
 Municipal corporations have quite invariably been held liable 
 for damages occasioned by acts resulting in the creation of public 
 or private nuisances, or for an unlawful entry upon the premises 
 of another, whereby injury to his property has been occasioned.* 
 
 But to create liability the act done must be without authority, 
 or be improperly done. A municipal corporation is not liable for 
 damage to private property, unless the act complained of was 
 without authority or against law, or was improperly or wantonly 
 executed.^ It is not liable where a sewer commissioner, without 
 authority, conducts the water of a sewer onto private land.* A 
 town is not liable for damage done to adjoining premises by water 
 leaking from a flume which, in excess of its authority, it had per- 
 mitted to be built in the streets." A city is not liable for an in- 
 jury to private property from the breaking of a public sewer from 
 faulty construction, unless notified of such faulty constraction." 
 
 It is not liable for an overflow caused by an unusual rainfall 
 that could not have been reasonably expected,^ or for the 
 damage caused to private property situated within its corporate 
 limits, through a sudden, unexpected overflow of a river.' But 
 
 ^Indianapolis v. Huffer, 30 Ind. 235; Rochester White Lead Go. v. Rochester, 
 3 N. Y. 463; North Vernon v. Voegler, 103 Ind. 314, 1 West. Rep. 566; 
 Chicago v. Gallagher, 44 111. 295; Gould v. Topeka, 32 Kan. 485; Prideaux 
 V. MineraJ. Point, 43 Wis. 513; Wilson v. Atlanta, 60 Ga. 473; Furguson 
 V. Davis Go. 57 Iowa, 601; Rice v. Evansville, 108 Ind. 7, 6 West. Rep. 
 24'^. 58 Am. Rep. 22; Helena v. Thompson, 29 Ark. 569; Detroit v. Gorey^ 
 9 Mich. 165; Atchison v. Ghallis, 9 Kan, 612; Philadelphia & R. R. Go. 
 V. Anderson, 94 Pa. 351. 
 
 ''Baltimore & P. R. Go. v. Fifth Baptist Ghurch, 108 U. S. 317, 27 L. ed. 
 739; Seiferi v. Brooklyn, 101 N.Y. 136. 2 Cent. Rep. 138. 
 
 ^Weeks, Damnum Absque Injuria; Seifert v. Brooklyn, 101 N. Y. 136, 2 
 Cent. Rep. 136. 
 
 * ^Kiernan v. Jersey Gity, 50 N. J. L. 246, 11 Cent. Rep. 551, 
 
 ^Idaho Springs v. Filteau, 10 Colo. 105. 
 
 ''Harrigan, v. Wilmington (Del. Feb. 21, 1888) 11 Cent. Rep. 251. 
 
 ^Moore v. Los Angeles, 72 Cal. 287.
 
 Chap. XY.] UNDER WHAT CIRCUMSTANCES CITY LIABLE. 338 
 
 it is the duty of a city in providinf^ water-ways, — sucli as sewers 
 and the like, — to provide such as are sufiieieut to carry off the 
 water that may reasonably be expected to accumulate ; and the 
 city is liable in damages for a failure to do so, whereby private 
 property becomes flooded, although the flow in the particular in- 
 stance was unusual,' But a sewer constructed by the owner of 
 premises as a private drain does not become a public sewer be- 
 cause of the property being acquired by the municipality ; and a 
 party obtaining permission of the cit}^ to connect his premises 
 with the drain cannot thereby cast the duty upon the city to keep 
 the sewer in repair." 
 
 A municipal corporation is not liable for damages for special 
 injuries from loosening the soil where it has dug a ditch in a 
 street and filled it in with the same soil, although the soil therein 
 is somewhat more porous than before.' 
 
 "While municipal corporations are not liable for the acts of per- 
 sons it licenses to use its streets, unless the thing authorized is in- 
 trinsically dangerous or illegal,* or the municipal authorities have 
 notice of the negligence of its licensees,* and it may authorize 
 by license parties not in its employ to open the public streets and 
 sidewalks with trenches to connect house-di*ains, water or gas 
 pipes with the public mains in the street, for private advantage 
 alone, yet it has in such dangerous work the same responsibility 
 as if it were being done by its own agents, and has the power to 
 take from them indemnity to protect the city from liability grow- 
 ing out of the grant of such privileges. Thus, one whose cellar 
 is flooded in consequence of the negligent work of a pluml)er 
 acting under a license of fhe municipality in laying a private 
 drain from a house to the public main in the street, is entitled 
 to such damages as are the natural and probable consequence of 
 the flooding, including the damage to goods and the loss of the 
 
 ^Spangler v. San Francisco, 84 Cal. 12. 
 
 ^Kosmak v. New York, 117 N.Y. 361. 
 
 ^Deioein v. Peoria, 24 111. App. 396. 
 
 *Cohen v. Neio York, 113 N. Y. 582, 4 L. R. A. 408; Iruine v. Wood, 51 N 
 
 Y. 224; Clifford \. Dam, 81 N.Y. 56; Saxton v. Zett, 44 iST. Y. 432; Creed 
 
 V. Hartmann, 29 N.Y. 591; Congreve v. Smith, 18 N.Y. 82; Dickinson v 
 
 New York, 28 Hun, 256. 
 ^Byanv. Curran, 64 Ind. 345; Dooley v. Sullivan, 112 Ind. 451, 11 West 
 
 Rep. 816; Warsaw v. Danlap, 112 Ind. 579, 12 West. Rep. 141.
 
 33i IMPOSED DUTIES, PEKSoNAL. [Fai't II. 
 
 use of the cellar.' Likewise a city is liable to the owner of a 
 green-house who is deprived of his supply of water by reason of 
 the nedigeiice of w'orkmen employed by the city in digging a 
 sewer, in uncovering a water-pipe running to the green-house, and 
 leaving the same exposed so that the water freezes." 
 
 Where the municipal officers of a town are constituted a tribu- 
 nal by statute, and the duty imposed on them, whenever they deem 
 it necessary for public convenience or health, to construct public 
 drains or sewers along or across any public way at the expense of 
 the town, and to have control of the same, such municipal officers, 
 in the performance of these duties, and in the exercise of the au- 
 thority with which they are invested by such general law, act, not 
 as agents of the town, but as public officers, deriving their power 
 from the sovereign authority. They act upon their own responsi- 
 bility, and are not subject either to the control or direction of the 
 inhabitants of the town, but are an independent board of public 
 officers, vested by law with the control of all matters within their 
 jurisdiction and performing duties imposed by general laws.' 
 Though chosen and paid by the town, and for many purposes its 
 agents, as in making contracts within the scope of their authority 
 about the affairs of the town, or acting under the direction of the 
 town in matters pertaining to its corporate duties,* yet these 
 officers do not sustain this relation in reference to the construction 
 of public drains or sewers. In these matters they form a part of 
 the municipal government in the performance of their public du- 
 ties, and are not servants or agents of the municipality by whom 
 they are chosen and paid, rendering their principals liable for their 
 acts, any more than are officers of a fire department ; ' or survey- 
 ors of highways and street commissioners when making, repairing 
 or otherwise performing their official duties upon highways or 
 
 ^Anderson v. Wilmington (Del. Dec. 1889) 19 Atl. Rep. 509. 
 
 '^Stock V. Boston, 149 Mass. 410. 
 
 ^Brimmer v. Boston, 103 Mass. 33; Burrillw. Augusta, 78 Me. 118, 1 New- 
 En g. Rep. 697; Woodcock v. Calais, 66 Me. 235; Estesv. China, 56 Me. 
 410; Lemon v. Neioton, 134 Mass. 479; Child v. Boston, 4 Allen, 41; Tind- 
 ley V. 8iilem,\^l Mass. 173; Cashing v. Bedford, 135 Mass. 538; Justice v. 
 Logansport, 101 Ind. 336; Kistner v. Indianapolis, 100 Ind. 310. 
 
 *Deane v. Randolph, 133 Mass. 475. See Gaspary v. Portland, (Or. Oct. 37, 
 1890) 34 Pac. Rep. 1036. 
 
 ^Kies V. Erie (Pa.) 26 W. N. C. 113; Burrill v. Augusta, 78 Me. 118, 1 New 
 Eag. Rep. 697; Hafford v. New Bedford, 16 Gray, 297.
 
 Chap. XY.] UNDER WHAT CIRCUMSTANCES CITY LIABLE. 335 
 
 streets : ' or liealtli officers, or municipal officers, in the discharji;o 
 of their duties in reUition to contagious diseases;' or police olH- 
 cers;^ or overseers of the poor/ A town is not liable for the 
 negligence of a physician, who, being placed in charge of its pest- 
 house bv its selectmen during an epidemic of small-pox, permits a 
 nurse to go forth without disinfection, and the disease is communi- 
 cated.' But negligence on the part of the local health authorities 
 in exposing residents near a pest-house to a contagious disease will 
 create a liability." The rule is generally recognized that where 
 the officers were appointed in obedience to statute, and are inde- 
 pendent of municipal control, and the injury was inflicted while 
 in their performance of a public service not peculiarly local or 
 corporate, the corporation is exempt from liability unless expressly 
 made liable by statute.' It is not liable for the negligence of an 
 officer in whose selection there was no negligence," so it is not 
 responsible for errors or wrongful acts of assessors or collectors of 
 taxes,* nor for the negligent acts of its town clerk" or town treas- 
 urer ;" nor can third persons, injured by the negligence, careless- 
 ness or unskillf ulness of such officers, while in the performance of 
 duties imposed upon them by the statutes, in such cases, invoke 
 against their municipality the rule of respondeat superior. The 
 liabilities of such corporations for the torts or negligent acts of their 
 officers are usually fixed by statute. They are to be held liable 
 for the negligence or misconduct of their officers only when made 
 
 ^ Small V. Danville, 51 Me. 359; Woodcock v. Oalau, 66 Me. 235; Walcoti v. 
 
 Swampscott, 1 Allen, 101; Barney v. Lowell, 98 Mass. 570. 
 ^Mitchell V, Rockland, 53 Me. 118; Barbour v. EUsioorth, 67 ^\e. 294. 
 *Culter V. Streator. 130 111. 238, 6 L. R. A. 270; Eies v. Erie (Pa.) 26 W. N". 
 
 C. 112; Cobb v. Portland, 55 Me. 381; Buttrick v. L<jwell, 1 Allen, 172; 
 
 Elliott V. Philadelphia, 15 Pa. 347. 
 *Farrington v, Anson, 77 Me. 406; JVew Bedford v. Taunton, 9 Allen, 207. 
 ^Brown v. Vinalhaven, 65 Me. 402. See note id Bines v. Charlotte (Mich.) 1 
 
 L. R. A. 844; Offg v. Lansing, 35 Iowa, 495, 14 Am. Rep. 499; Sumners 
 
 V. Daviess County, 103 Ind. 262, 1 West. Rep. 217. 
 ^Hagg v. Vanderbeurgh County Comrs. 60 Ind. 511; Qifford v. Babies Uos- 
 
 piial (Sup. Ct. June 21, 1888) 17 N. Y. S. R. 886. 
 ''Symonds v. Clay County, 71 111. 357; Greenwood v. Lom'sville, 13 Bush, 229; 
 
 Richmond v. Long, 17 Gratt. 382; Dargan v. Mobile, 31 Ala. 469. 
 ^Dargan v. Mobile, 31 Ala. 469. 
 ^Lorillard v. Monroe, 11 N. Y. 393. 
 ^^Lyman v. Edgerton, 29 Vt. 305. 
 ^^Snow V. Brunswick, 71 Me. 582; Dunbar v. Boston, 112 Mass. 75.
 
 336 IMPOSED DUTIES, PEESONAL. [Part II. 
 
 so by express statute, or when the act out of wliieh the claim 
 originates was within the scope of their corporate powers, and was 
 directly and expressly ordered by the corporation.' Thus, where 
 the selectmen of towns were authorized to establish and maintain 
 such public drinking troughs and fountains, within the public 
 highways of their towns, " as in their judgment the public neces- 
 sity and convenience may require," and the towns were authorized 
 to raise and appropriate money to pay the expense thereof, these 
 provisions made the selectmen a board of public officers charged 
 with this duty; they were not agents qi the town, but repre- 
 sented the general public,'' and as towns in their corporate capacity 
 had not been given the right by statute to construct drinking 
 troughs in the public highways, it was decided that the town could 
 not therefore be charged with having created a nuisance from 
 which the plaintiff suffered special injury.' In the exercise of 
 their political, discretionary and legislative functions, they are not 
 liable for the misconduct, negligence or omissions of the officers 
 whom they employ. It is only in the discharge of ministerial or 
 specified duties assumed in consideration of the privileges con- 
 ferred by their charter that they are liable.' A municipal corpo- 
 ration is not to be regarded as principal, and therefore liable for 
 the defalcations and delinquencies of its public officers, in failing 
 to perform public duties which the law has laid upon them, and 
 in respect to which the municipality is neither invested with cor- 
 porate power nor charged with any corporate duty or statutory 
 liability, and from the performance of which it derives no special 
 advantage. The officer, under such circumstances, is regarded as 
 an independent public agent, or quasi civil officer of the govern- 
 ment, personally answerable for his misconduct or official delin- 
 quencies, and not as the agent or servant of the municipality. 
 Omissions of duty imposed upon such an officer by law, however 
 injurious they may be to others, are not injuries for which the 
 
 ^Burrill v. Augusta, 78 Me. 118, 1 New Eng. Rep. 697; Woodcock v. Calais, 
 66 Me. 235; Anthony v. Adams, 1 Met. 284; Beane v. Randolph, 132 Mass. 
 475; Seele v. Deering, 79 Me. 347; Thayer v. Boston, 19 Pick. 511. 
 
 « ^Cushing v. Bedford, 125 Mass. 526; Bulger v. Eden, 82 Me. 352, 9 L. R. A. 
 205. 
 
 ^Richmond v. Long, 17 Gratt. 382.
 
 Chap. XV.] UNDER WHAT CIRCUMSTANCES CITY LIABLE. 337 
 
 corporation of which he is nominally an officer is liahle.' So a 
 municipal corporation is not liable for injuries and tortious acts of 
 its agents which are in their nature unlawful or prohibited.^ So 
 it is not liable for acts of its officers in atteniptinor to enforce a 
 void ordinance,* nor, where a constable unlawfully seizes and 
 sells real property for city taxes.* But while it is a general rule 
 that a town is not liable for the negligence of its agents or servants 
 in a matter in which it has no interest, and which has no direct or 
 natural tendency to injure any individual in person or property, 
 -and which it has in charge solely in the performance of a public 
 duty imposed upon it by law," yet a city is hable for the negli- 
 gence of its agents in the performance of a public dut}', if they 
 are specially employed by the city for the particular work and are 
 not acting as public officers.* 
 
 The municipal corporation will not be liable for any deficiency 
 or defect in the plan adopted, where the improvement is made, 
 not b}^ its direction as the municipal corporation, but by the body 
 authorized by the general law to plan, adopt and order the work. 
 This is ruled in Child v. Boston^ 4 Allen, 41, although the Act 
 authorizing the making, maintaining and repairing of common 
 sewers was not to take effect in any city until adopted by the 
 mayor, aldermen and common council, and after such acceptance 
 the duty was devolved upon the aldermen. It was said the duty 
 to determine what drains should be built and where they should 
 discharge was of a quasi judicial nature, involving the exercise of 
 a large discretion and depending upon considerations affecting the 
 public health and general convenience. The action of the alder- 
 
 ^Pett^ngill v. Yonkers, 116 N. Y. 558; Hannon v. St. Louis County, 62 Mo. 
 313; Morrison v. Lawrence. 98 Mass. 219; Fisher v. Boston, 104 Mass. 87; 
 Ogg V. Lansing. 35 Iowa, 495; Maxmilian v. New York, 62 N.Y. 160; Prather 
 V. Lexington, 13 B. Mon. 559; Mend v. Neio Haven, 40 Conn. 72; Eastman 
 V. Meredith, 36 N. H. 284; Fowle v. Alexandria, 28 U. S. 3 Pet. 397 7 L 
 ed. 719. 
 
 ^Worley v. Columbia, 88 Mo.'106, 4 West. Rep. 342; Brown v. Cape Girardeau 
 
 90 Mo. 377, 7 West. Rep. 154; Hunt v. Boonville, 65 Mo. 620; Rowland v. 
 
 Gallatin, 75 Mo. 134; Thomson v. Boonville, 61 Mo. 282; Thayer v. Boston 
 
 19 Pick. 511. 
 ^Worley v. Columbia, 88 Mo. 106, 4 West. Rep. 342; Odellv. Schroeder, 58 
 
 111. 353. 
 *Everson v. Syracuse, 100 N. Y. 577, 1 Cent. Rep. 756. 
 ^lindley v. Salem, 137 Mass. 172; Hill v. Boston, 123 Mass. 344. 
 *Mulcaims v. Janesville, 67 Wis. 24. 
 22
 
 338 IMPOSED DUTIES, PERSONAL. [Part II, 
 
 men was not as agents of the city or under its direction, but a& 
 public officers.' As tlie corporation accepted the Act, and the 
 duty of maintaining the sewers was devolved upon the city, it 
 was thereafter responsible for neglect in this respect, and the case 
 •was distinguished from those cases holding that a private action 
 cannot be sustained against a city or town unless given by statute, 
 for negligence in the discharge of a public duty, the performance 
 of which is required of all such corporations alike." And it was 
 held that the duty to maintain the sewers included the duty to 
 extend them when the outlet became filled up and surrounded by 
 solid ground. 
 
 Section oi.—TJie Fade of Liability in J^ew England^ 
 
 In Massachusetts an early distinction was taken in Riddle v. 
 Loc'ks <& Canals, 7 Mass. 169, between proper aggregate corpo- 
 rations and the inhabitants of districts, who are by statute invested 
 with particular powers without their consent, called quasi cor- 
 porations. Of this description, it is said, are counties and hun- 
 dreds in England, and counties, towns, etc., in that State. Al- 
 though quasi corporations are liable to information or indict- 
 ment for a neglect of a public duty imposed on them by law, yet 
 it is settled in the case of Russel v. Devon, 2 T. R. 667,° that 
 
 'This is very clearly explained by Mannino:, J"., in Detroit v. Corey, 9 Mich. 
 165, 184. See also MilUv. BrooUiin, 32 N. Y. 489; Ro«s v. Madimn, 1 
 Ind'. 281; Kensington v. Wood, 10 Pa. 93, 95. But see Denver v. Rhodes, 
 9 Colo. 554, where it is said the construction of a sewer is not a public 
 work for the benefit of the people of the State, so as to shield the cor- 
 poration from liability to persons whose property is damaged during the 
 progress of the work. 
 
 ^Mower v. Leicsder, 9 Mass. 247; Bigelow v. Randolph, 14 Gray, 541. 
 
 ^See also Alderson, B., in MoKinnon v. Benson, 8 Exch. 319, 321, 323; Han- 
 nen J., in Gibson v. Preston, L. R. 5 Q. B. 218, 222; Cockburn, CJi. J., 
 in Scott V. Manchester, 2 Hurl. & N. 204, 210; Kent, C, in Bartlett v. 
 Crozier, 17 Johns. 439. 454; Nelson, Gh. J., in Bailey v. New York, 3 
 Hill 531 539; Selden, J., in Weet-^. Brockport, 16 N. Y. 161, 167, note; 
 Strong, J., in Western 8. F. Soc. v. Philadelphia, 31 Pa. 185, 189. The 
 decision in Ilenly v. Lyme, 5 Bing. 91, 3 Barn. & Ad. 77, 2 Clark & F. 
 331, rested the liability in sustaining a judgment for the neglect of the 
 corporation to repair a sea-wall, and clear a tide-water creek, on the 
 ground that the declaration in effect charged that the corporation "are 
 bound by prescription, and it might be the very condition and terms of 
 their creation or charter;" and in White v. Bindley Board of Health, L. R. 
 10 Q. B. 219, the reason of responsibility for injury from a defective 
 grate over a sewer was that the defendant corporation owned the sewer.
 
 Chap. XV.] RULE OF LIAIJILITV !>.' NEW EXGLA>rD. 331> 
 
 no private action can be iiiaiiitaiiiecl against tlieni for a l)reacli of 
 their corporate duty, unless such action be given by statute. And 
 tlie sound reason is that, having no corporate fund and no legal 
 means of obtaining one, each corporator is liable to satisfy any 
 judgment rendered against the corporation;' and in Massachusetts 
 payment of such a judgment has never been compelled by 
 mandamus. This burden the common law will not impose, 
 but in cases where the statute is an authority, to which 
 every man must be considered as assenting. But in reg- 
 ular corporations, which have, or are supposed to have, a cor- 
 porate fund, this reason does not apply. According to this 
 reasoning, where cities, towns or counties have the duty imposed 
 upon them as owners, or having possession, of the highways, 
 gutters and drains, with the power to raise funds to care for them, 
 their liability should be recognized for neglect of such duty." But. 
 in Moicer v. Leicester^ 9 Mass. 247, 250,' this question was decided 
 adversely to the person injured by a defect on the higliwa}^, al- 
 though the town was declared a corporation by statute, capal)le of 
 suing and being sued, and the duty of keeping the public high- 
 ways in repair expressly imposed, and the corporation had a 
 treasury out of which judgments could be paid. The opinion, 
 " Curia^'' is brief, and denies the right of action unless given by 
 
 ^Eaickes v. Kennebeck, 7 Mass. 461, 463; Chase v. Merrimack Bank, 19 Pick, 
 564, 569; Gaskill v. Dudley, 6 Met. 546; Beardsley v. Smitli, 16 Conn. 368. 
 
 ^Supervisors v. United States, 71 U. S. 4 Wall. 435, 18 L. ed. 419. 
 
 *Se3 Riddle y. Locks & Canals, 7 Mass. 169, 187; White v. Phillipston, 10 Met. 
 108, 110; Sawyer v. Northfield, 7 Cush. 490, 494; Adams v. Wiscasset 
 Bank, 1 Me. 361, 364; Reedv. Belfast, 20 Me. 246; Farmim v. Concord 
 2 N. H. 393; Aastmnn v. Meredith, 36 N. H. 284, 297-300; Hyde v. Ja- 
 maica, 27 Vt. 443, 457; State v. Burlington, 36 Vt. 521, 524; Chidsey v. 
 Canton, 17 Conn. 475, 478; Taylor v. Beckham, 8 R. I. 349. 352; Bartlelt 
 V. Crozier, 17 .Johns. 439, 452-455; Sussex v. Stroder, 18 N. J. L. 108; 
 Cooley V. Essex, 27 N. J. L. 415; Livermore v. Camden, 29 N. J. L. 415,' 
 31 N. J. L. 507; Niles v. Martin, 4 Mich. 557; Hedges v. Madison 
 County, 6 111. 567; White v. Bond Cuunty, 58 111. 297; Waltham v. Kem- 
 per, 55 111. 346; Bussell v. Steuben, 57 111. 35. For negligent construction 
 of public buildings no liability is incurred except by statute. Sussex v. 
 Stroder, 18 N. J. L. 21 ; Hamilton County v. Mighels, 7 Ohio St. 100; 
 Eastman v. Meredith, 36 N. II. 284; Bigelow v. Randolph, 14 Gray, 541.' 
 A public corporation is not liable to an action by individuals, unless it 
 be given by statute. White v. Charleston, 2 Hill (S. C.) 571. It is not 
 liable in case, or other form of civil action, for neglect of public duly, 
 unless such liability be expressly declared by statute. State v. Hancock 
 Co. Comrs. 11 Ohio St. 190; Hedges v. Madison Co. 7 111. 567; Van Eppes 
 V. Mobile Co. Co7nrs. 25 Ala. 460; Larkinv. Saginaw Co. 11 Mich. 88- 
 Bray v. Wallingford, 20 Conn. 416, 419.
 
 340 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 statute in the particular instance, and adds : " This question is 
 fully discussed in the case of Russel v. Devon, cited at the bar, 
 and tlie reasoning there is conclusive against the action." Of 
 that case the editor, Benjamin Rand, in a note, says: "From the 
 reasoning of the court in Russel v. Devon, 2 T. R, 667, that 
 case seems to have been decided merely on the ground that no 
 action would lie against the inhabitants of the town unless given 
 by some statute. If so, it is not very obvious how this decision 
 can have any other tendency than to show that, upon principle, 
 the action may be maintained here." Exceptions have been from 
 time to time admitted to this rule. Thus, where a special charter, 
 accepted by a city or town, or granted at its request, requires it 
 to construct public works, and enables it to assess the expense 
 thereof upon those immediately benefited thereby, the town will 
 be liable for a neglect of the duty.' 
 
 IJenly v. Lyme, 5 Bing. 91, and Emery v. Lowell, 104 Mass. 
 13, and the cases following them, have reinforced the distinction 
 established in Child v. Boston, 4 Allen, 41, that while no action 
 lies for a defect or want of sufficiency in the plan or system of 
 drainage adopted in the exercise of a quasi judicial discretion, 
 under powers especially conferred by statute, the duty of keeping 
 the common sewers in repair and free from obstructions, after 
 they have been constructed and have become the property of the 
 city under such authority, is a ministerial duty, for neglect of 
 which the city is liable to any person injured. The same is true 
 of the duty actually to construct them with reasonable care arid 
 skill. And there is no difference in these duties whether the city 
 has acquired the right to maintain the sewer by prescription or 
 has laid it under the statute.^ 
 
 While the colonial growth of local population, clustering to- 
 gether for companionship and mutual protection, gradually created 
 towns, which received from the Legislature, by name, power to 
 manage their own local affairs, electing representatives and town 
 
 ' Metcalf, J., in Bigelow v. Randolph, 14 Gray, 543; Child v. Boston, 4 Allen, 
 41 51- Perley, Ch. J., in Eastmans. Meredith, 36 N. H. 289-294; Ne 
 braxka City v. Campbell, 67 U. S. 2 Black, 590, 17 L. ed. 271; Weightman 
 V. Washington, 66 U. S. 1 Black, 39, 17 L. ed. 52. 
 
 2 See Gould y. Boston, 120 Mass. 300; Bates y. Westborough (Mass. Feb. 37, 
 1890)7 L. R. A. 156; Phillips y. Mankato, 23 Minn. 276; Bradbury v. 
 Benton, 69 Me. 194.
 
 Chap. XY.J RULE OF LIABILITY IN NEW ENGLAND. 341 
 
 officers, making by-laws and disposiiisj:, subject to legislative con- 
 trol, of unoccupied lands within their territory, becoming thus 
 municipal corporations, without any formal Act of incorporation,* 
 yet the courts were unwilling to recognize the marked distinction 
 between such towns and cities, with their complete local organiza- 
 tion and power of self government and their political unity, and 
 " hundreds " in England, althongh as to these towns it was expressly 
 decided by the courts, even before it was declared by statute, that 
 they were capable of holding property and making contracts for 
 tlie purpose for which they were established, and power was given 
 them by law to sue and be sued.' Nor have the courts recognized 
 the change to a town with its enlarged powers, as imposing an ad- 
 ditional duty, followed by liability for its neglect, in the care of 
 its highways. It is still held, indeed, in all the New England States 
 that neither a town nor a city is liable for injury from a defective 
 highway unless such action has been clearly given by statute, and 
 the same rule prevails in New Jersey, Michigan and California.' 
 It is little cause for surprise that, in the newer States, where 
 such towns and cities sprang into full life and asserted the rights 
 of corporate existence and the exercise of corporate power, almost 
 before a census of the population could be taken, or a formal or- 
 ganized government established, the marked difference between 
 them and the English hundred and shire should have freed the 
 courts, having jurisdiction of the youthful prodigies, of any undue 
 deference to English precedents, which could properly apply alone 
 to English pi-ogi ess. Nor was the character of the population such 
 
 ^Hill V. Boston, 123 Mass. 344; Porter v. Sullivan, 7 Gray. 441, 444; Com. v. 
 Roxbury, 9 Gray, 451, 485; West Roxbury v. Stoddard,! Allen, 158, 109; 
 Lynn v. Naliant, 113 Mass. 433, 448. 
 
 «Prov. Stat. 1692-93 (4 W. & M.) chap. 28; 1694-95 (6 W. & M.) chap. 13; 
 1 Prov. Laws (State ed.)64, 66, 182; Anc. Chart. 247, 249, 279; Stat. 1785, 
 chap. 75, § 8; Rev. Stat. chap. 15, § 8; Gen. Stat. chap. 18, § 1; Wind^ 
 ham V. Portland, 4 Mass. 384, 389; Rurnford Fourth School Dint. v. Wood, 
 13 Mass. 193, 198; First Parish in Sutton v. Cole, 3 Pick. 232, 240; Rev. 
 Stat. chap. 15, § 11, and Commissioners' note; Gen. Stat. chap. 19, § 9. 
 
 ^Bulger v. Eden (Me. Feb. 17, 1890) 9 L. R. A. 205; Burrill v. Augusta, 78 
 Me. 118, 1 New Eng. Rep. 697; W^oodcock v. Calais, 66 Me. 235; Seele v. 
 Peering, 79 Me. 347, 4 New Eng. Rep. 550; Deanew. Randolph, 132 Mass. 
 475; Oliver v. Worcester, 102 Mass. 489; Jones v. New Haven, 34 Conn. 1, 
 13; Ileu-ison v. New Haven, 37 Conn. 475; Pray v. Jersey City, 32 N. J. 
 L. 394; Petroit v. Blackeby, 21 Mich. 84; Chope v. Eureka, 78'Cal. 588, 4 
 L. R. A. 325; Winbigler v. Los Angeles, 45 Cal. 36; Tranter v. Sacramento, 
 61 Cal. 275; Bennett v. Contra Costa County, 67 Cal. 77; Crowell v. Sonoma 
 County, 25 Cal. 315; Huffman v. San Joaquin Co. 21 Cal. 430.
 
 3J:2 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 as, while fully appreciating its privileges and the legitimate accom- 
 panying burdens, sought escape from responsibility for its own 
 neglect or carelessness. Naturally such responsibility, freely ad- 
 mitted by the ambitious municipalities, was enforced by tlie courts 
 as more suitable to the existing conditions of responsil>le self gov- 
 ernment than the common-law rule applied in England and in the 
 Colonies.* Indeed, the general rule is that wherever a municipal 
 •corporation is clothed by charter with exclusive control of its 
 streets, or its common council or trustees are empowered to care 
 for and repair the streets, it is liable to respond in damages to the 
 person injured by the wrongful or negligent failure to keep such 
 streets safe for the use of passengers thereon.^ The rule holds 
 
 Warrington v. St. Louis, 89 Mo. 208, 4 West. Rep. 679; Malcairns v. Janes- 
 tille, 67 Wis. 24; Welter v. St. Paul, 40 Minn. 460; Cline v. Gresent Giti/ 
 E. Go. (La. Dec. 2, 1889) 6 So. Rep. 851 ; Denver v. Rhodes, 9 Colo. 554; 
 Smoolv.Wetumpka, 24 Ala. 112; Pittsburgh v. Grier, 22 Pa. 54; Dayton 
 V. Pease, 4 Oliio St. 80; Indiunnpohs v. Evimebnan, 108 Ind. 530, 6 West. 
 Rep. 566; Evanston v. Ounn. 99 U. S. 660, 25 L, ed. 306; Barnes v. Dis- 
 trict of Golumbia, 91 U. S. 540, 23 L. ed. 440; Maxicellv. District of Gol- 
 umbia, 91 U. S. 557, 23 L. ed. 445; Dant v. District of Golvmbia, 91 U. S. 
 557, 23 L. ed. 446; District of Columhia v. Armes, 107 U. S. 519, 27 L. ed. 
 618; New York v. Sheffield, 71 U. S. 4 Wall. Ib9, 18 L. ed. 416; Nebraska 
 Cifyv. Campbell, 67 U. S. 2 Black, 590, 17 L. ed. 271; Chicago v. Bobbins, 
 67 U. S. 2 Black, 218, 17 L. ed. 298; Bobbins v. Chicago, 71 U. S. 4 Wall. 
 658, 18 L. ed. 427; St. Paul Water Co. v. Ware, 83 U. S. 16 Wall. 566, 21 
 L. ed. 485; Kenyon v. Lidianapolis, 1 Wiis. (Ind.) 129 ; Chicago v. M'cGiven, 
 78111. 347; Bockford v. Hildcbrand, 61 111. 155; Owen v. Chicago, 10 111. 
 App. 465; Gibson v. Johnson, 4111. App. 288; Warrens. Wright, '6 111. App. 
 602; Grant v. Stillwater, 35 Minn. 242; Theise v. St. Paul, 36 Minn. 526; 
 Osborne v. Detroit, 32 Fed. Rep. 36: Denver v. Dean. 10 Colo. 375; Boulder 
 V. Niles, 9 Colo. 415; Sterling v. Merrill, 124 111 522, 14 West. Rep. 399; 
 Brunning v. Springfield. 17 111. 143; Glayhurgh v. Chicago, 25 111. 533; 
 Springfield v. De Claire, 49 lil. 476; Anne Arundel County v. Duckett, 20 
 Md. 468; Harmon v. St. Louis County, 62 Mo. 318; Bennett v. Whitney, 94 
 N. Y. 302; Hover v. Barkhoff, 44 N. Y. 113; Storrs v. Utica, 17 N. Y. 104; 
 Barton v. Syracuse, 36 N. Y. 54; Ehrqott v. Neio York, 96 N. Y. 264; 
 Hume V. New York, 74 N. Y. 264; Dwvenport v. Ruckman. 37 N. Y. 568; 
 Requa v. Rochester, 45 N. Y. 129; Baiiey v. New York, 3 Hill, 531; Weed 
 V. Ballston Spa, 76 N. Y. 329; Albrittin v. Huntsville, 60 Ala. 486; Selma 
 V. Perkins, 68 Ala. 145; Denter v. Dunsmore, 7 Colo. 328; Delger v. St. 
 Paul, 14 Fed. Rep. 567; Parker v. Malo7i, 39 Ga. 725; Sterlivg v. Thomas, 
 60111. 2*14; Bohen V. Waseca, 32 Minn. 176; Shartle v. Minneapolis, 17 
 Minn. 308; Gorham v. Gooperstown. 59 N. Y. 660; Knoxeille v. Bell, 12 
 Lea, 157; Griffin v.Williarnstown, 6 W. Va. 312; Boulder v. Niles, 9 Colo. 
 415; Sawyer v. Corse, 17 Gratt. 241; Richmond v. Long, Id. 375; Western 
 College v. Cleveland, 12 Ohio St. 377; McCombs v. J.A;r6>n, 15 Ohio, 476; 
 Rhodes v. Cleveland, 10 Ohio, 159. 
 
 Wennett v. Whitney, 94 N. Y. 302; 5ocer v. Barkhoff, 44 N. Y. IIC; Hutson 
 V. iVew ror/c, 9 N. Y. 163; (??vj^?i. v. New York, Id. 456; Robinson v. 
 Chamberlain, 34 N. Y. 380; IFeeJ v. Brockport, 16 N. Y. 161, wofe; Cbn- 
 rad V. Lthaca, 16 N.Y. 158; Hunt v. iVew; r<?rA;, 20 Jones & S. 198; Barton 
 V. Syracuse, 37 Barb. 292; .ff^art v. Rondout, 44 Barb. 385; (jtor^ v.
 
 Chap. XV.] RULE OF LIAr,ILITY IN NEW ENGLAND. 343 
 
 such cities and towns liable for damages caused by a failure to keep 
 their streets in a safe condition for travel, whether sucli liability is 
 specifically imposed by the Act of incorporation or not,' and mu- 
 nicipal corporations upon which the duty is imposed to keep in 
 repair streets or bridges, and which have the means of accomplish- 
 ing such duty, are liable for any damage arising out of neglect in 
 keeping the same in proper coiulition." 
 
 But in Xew England the rule there recognized in terms, that a 
 private action cannot be maintained against a town or otlier quasi 
 •public corporation for a neglect of corporate duty, unless such action 
 be given by statute, is admitted to be of limited application. It is 
 applied, in cases of towns, only to the neglect or omission of a 
 town to perform those duties which are imposed on all towns, 
 without their corporate assent, and exclusively for public purposes ; 
 and not to the neglect of those obligations which a town incurs, 
 when a special duty is imposed on it, with its consent, express or 
 implied, or a special authority is conferred on it at its request. In 
 the latter cases, a town is subject to the same liabilities, for the 
 neglect of these special duties, to which private corporations would 
 be, if the same duties were imposed, or the same authority were 
 conferred, on them, including their liability for the wrongful neg- 
 lect as well as the wrongful acts of their officers and agents." 
 The distinction is the same as that between public officers — not 
 
 Lockport, 49 Barb. 580; Daxenport v, Ruckman, 37 N. Y. 568: McCarthy 
 V. Syracuse, 46 N. Y. 194; Reqxia v. Rochester, 45 N. Y. 129; Mosei/ v 
 Troy, 61 Barb. 580; Hincs v. Lockport, 50 N. Y. 236; Adsitv. Brady 4 
 Hill, 630; New York v. Furze, 3 Hill, 612; Reinliard v. New York, 2 Daly 
 243; Diveny v. Elmira, 51 N. Y. 506; Todd v. Troy, 61 N. Y. 506; Ehrgot't 
 V. New York, 96 N. Y. 264; Hume v. Neic York. 74 N. Y. 264; Weed v. 
 Balhton Spa, 76 N. Y. 329; Alhrittin v. Jlunf.mlle, 60 Ala. 486; Senna v. 
 Perkins, 68 Ala. 145; Chicago v. Bobbins, 67 U. S. 2 Black. 418, 17 L. ed.' 
 298; Denver v. Dunsmore, 7 Colo. 328; Delger v. St. Paul. 14 Fed. Rep. 
 567; Parker v. Macon. 39 Ga. 725; Sterling v. Thomas, 60 111. 264; Bohen 
 V.Waseca, 32 Minn. 176; Shartle v. MinnenpoUs, 17 Minn. 308; Oorhamv. 
 Cooperstoxm, 59 N. Y. 660; Enoxville v. Bell, 13 Lea, 157; Griffin v. Will- 
 iamstown, 6 W. Va. 312. 
 
 ^Boulder v. Niles, 9 Colo. 415. 
 
 'i Nebraska City v. Campbell, 67 U. S. 2 Black, 590, 17 L. ed. 271; Chioigo v 
 Bobbins, 67 U. S. 2 Black, 418, 17 L. ed. 298; Bobbins v. Chicarp 71 U 8 
 4 Wall. 657, 18 L. ed. 427; St. Paul Water Co. v. Ware, 83 U b 16 Wall 
 566, 21 L. ed. 485. 
 
 ^Murphy V. Lowell, 124 Mass. 564; Emery v. Lowell, 104 Mass. 15; Child v. 
 Boston, 4 Allen, 41, 52; Merrifieldv. Worcester, 110 IMass. 218; Oliver v. 
 Worcester, 102 Mas?. 500. See also Hill v. Boston, 122 Mass. 358, 3^0; 
 Tindley v. Salem, 137 ]\Iass. 172. In such cases the work is not purely
 
 34:4: IMPOSED DUTIES, PERSONAL. [Part IL 
 
 paid for special services by private persons, but by the public for 
 public services, whose contract is with the State and obligation to 
 the State alone — and private individuals who for compensation 
 from the State or sovereign power assume certain duties, which 
 are treated as assumed towards and to inure to the benefit of every- 
 one interested in their performance. Corporations have been 
 placed with the latter class.' 
 
 And so towns are liable there, as they are elsewhere, for negli- 
 gence in managing or dealing with property or rights held by them 
 for their own advantage or emolument. A municipal corporation 
 owning and keeping property for public purposes is as much sub- 
 ject as a private individual to the usual rule, sic uiere tuo ut alien- 
 um non IcBdas."^ A city is liable for damages occasioned by a 
 nuisance caused by the defective construction of the privy well of 
 a school-house belonging to the city.^ 
 
 Wliere a special charter accepted by a city or town, or granted 
 at its request, requires it to construct public works and enables it 
 to assess the expense thereof upon those immediately benefited 
 thereby, or to derive benefits in its own corporate capacity from 
 the use thereof, by way of tolls or otherwise, the town is liable, as 
 any other corporation would be, for any injury done to any person 
 in the negligent exercise of the powers so conferred.* So where 
 a municipal corporation holds or deals with property as its own,, 
 not for tlie direct and immediate use of the public, but for its own 
 benefit, by receiving rents or otherwise, in the same way as a pri- 
 vate owner might, it is liable to the same extent he would be for 
 the negligent management thereof to the injury of others, — thus, 
 for injury to a private individual by erecting houses on a street 
 and receiving rent;^ so for injury at a wharf for which the city 
 
 for the direct and immediate use of the public alone, but partly commer- 
 cial in its cliaracter, in which some benefit accrues to the municipality by 
 way of consideration for the conveniences afforded to tliosewho are will- 
 ing to pay for tliem. Bulger v. Eden (Me. Feb. 17, 1890) 9 L. R. A. 203. 
 
 ^Bigelow v. Randolph, 14 Gray, 541; Weet v. Brockport, Selden, J., reported 
 in note to Conrad v. Itliaca, 16 N. Y. 161. 
 
 * ^Briegel v. Philadelphia (Pa.) 26 W. N. C. 253. See also Moulton v. Scar- 
 borough, 71 Me. 269, and cases cited; Hand v. Brookline, 126 Mass. 324. 
 
 *Henly v. Lyme, 5 Bing. 91 ; Weightman v. Washington, 66 U. S. 1 Black, 39,. 
 17 L ed 52; Nebraska City v. Campbell, 67 U. S. 2 Black, 590, 17 L. ed. 
 271; Perley, Ch. J., in Eastman v. Meredith, 36 N. H. 289-294; Metcalf, 
 /., in Bigeloio v. Randolph, 14 Gray, 543; Child v. Boston, 4 Allen, 41, 51. 
 
 ^Thayer v. Boston, 19 Pick. 511.
 
 Chap. XV. J RULE OF LIABILITY IM NEW ENGLAND. 345 
 
 received wharfage;' so for leaving a hole near a path to a l)uil(]- 
 ing owned, used and partly rented by the city, it was held liable 
 at common law to one who fell into it.' When property is used 
 or business is conducted by a town principally for public purposes, 
 under the authority of the law, but incidentally and in part for 
 profit, the town is liable for negligence in the management of it.* 
 A town owning a town hall larger than it actually needs for mu- 
 nicipal purposes is not bound to keep the part it does not use 
 wholly unoccupied, but may derive a revenue therefrom by renting^ 
 or allow the same to be used gratuitously.* But if it assumes to 
 rent out such unoccupied portion it thereby becomes liable, in the 
 same manner, and to the same extent, that a private owner would 
 be.^ If, however, the corporation let its building, not for prolit, 
 but gratuitously, no liability arises." A city which has under- 
 taken, voluntarily and gratuitously, the care of its shade trees, is 
 liable to a person injured by the falling of a dead limb negligently 
 allowed to remain on a tree, the duty thus undertaken being not 
 strictly governmental, but rather private and ministerial.'' 
 
 Where paupers whose support was chai'geable to another town, 
 and to the Commonwealth, were boarded for pay upon the town 
 farm, and persons employed to work upon the highways were also 
 boarded there, and horses were kept there principally for use in 
 repairing the highways, and the master at the town almshouse 
 employed one Crawford to work at the almshouse, and on Febru- 
 ary 1, 1887, directed said Crawford to go to Boston with a two- 
 horse team to haul manure for the town farm, and while returning 
 through Xewton, an adjoining town, the plaintiff was knocked 
 down and injured at the corner of two streets by the team driven 
 by Crawford, it was said that it cannot be held that the use of the 
 farm by the defendant was illegal, so as to exonerate the town 
 
 ^Pittsburgh v. Grier, 23 Pa. 54. See also Eastman v. Meredith, 36 N. H. 
 
 295; Mersey Docks v. Gibbs, 11 H. L. Cas. 687; Bailey v. New York, 3 Ilill, 
 
 531, per Chief Justice Nelson. 
 '^Oliver v. Worcester, 103 Mass. 489. 
 ^Worden v. New Bedford, 131 Mass. 23; Oliver v. Worcester, 102 Mass. 489; 
 
 Tindley v. Salem, 137 Mass. 173. 
 ^French v. Quincy, 3 Allen, 13. 
 <> Warden v. New Bedford, 131 Mass. 34. 
 ^Larrabee v. Peabody, 188 Mass. 561. 
 '^■Jones V. New Uaven, 34 Conn. 1.
 
 346 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 from liability on account of it. It was not an appropriation of 
 public money to a commercial enterprise, conducted primarily for 
 profit. The income received from tlie farm was, apparently, inci- 
 dental to the use of it in tlie support of paupers having a residence 
 in the town, and in boarding horses and men employed upon the 
 highways which the town maintained. A city or town may 
 make any reasonable provision for the support of paupers, or for 
 sustaining other public burdens imposed upon it, and for that pur- 
 pose may manage a farm which produces more crops than are 
 needed for the food of the paupers, and may sell or exchange the 
 surplus. It may transact business outside of the authority ex- 
 pressly given it, if the business is incidental to the performance of 
 its public duties. Overseers of the poor are public officers who 
 commonly act under the authority of the law, and not as agents of 
 a town. But in some matters they may represent the town as its 
 agents.' They have the care and custody of the paupers in their 
 respective cities and towns, and are to see that they are suitably 
 relieved, supported and employed ; but the city or town is usually 
 to direct the manner and provide the means of supporting its 
 paupers. But if a town sees fit to buy a farm, and cultivate it in 
 connection with an almshouse, there is nothing in the statute which 
 ^ives the overseers of the poor a right to manage it without au. 
 thority from the town. 
 
 It was shown in Neffer v. Wellesley, 148 Mass. 487, 2 L. E. 
 A. 500, that the same persons held the offices of overseers of the 
 poor, highway surveyors and selectmen. In one capacity they had 
 the care and oversight of the paupers, in another of the roads and 
 bridges, and in the third of many of the other prudential affairs 
 of the town. There the farm was used in part for the support of 
 the paupers, of whom the}^ had charge as overseers of the poor, 
 in part for a purpose which was connected with tlie maintenance 
 of the highways, which were in charge of the highway surveyors, 
 and in part for the production of income, a use which was outside 
 of the express authority of any board of public officers, and was 
 under an assumption of authority that seems to have been approved 
 and ratified by the town. And it was said that the three persons 
 who managed the farm in the interest of the town for these several 
 
 ^NewBedford v. Taunton, 9 Allen, 207.
 
 •Chap. XV.] RULE OF LIABILITY IN NEW ENGLAND. 347 
 
 purposes cannot be deemed to liave been actinc^ merel}' as a sinijle 
 l)oard of public officjrs; but they represented the defendant in 
 different capacities, sucli as to make them in that business the de- 
 fendant's agents, and the fact of the driver's net^h'gence, wliich the 
 jury found, was ruled to conchisively establish the town's lialjility. 
 I'ut a city is not liable for injuries resulting from the negligence 
 of officers engaged in tlie management of a workhouse which lias 
 been established purelj' for the public service, and to assist in the 
 performance of its public duty of supporting paupers and crimi- 
 nals, and who also conduct the work incidental to the maintenance 
 of the institution and to the employment of its inmates, although 
 the establishment was voluntarily erected and maintained under 
 legislative permission ; and the fact that some revenue is derived 
 by the city from the labor of the inmates is immaterial if the insti- 
 tution is not conducted with a view to pecuniary profit, and none 
 is in fact obtained. This is especially true where such officers are 
 appointed and directed by an independent board which is in no 
 way the agent of the city.' 
 
 But although in New England it seems that this irresponsibility 
 is not confined to nonfeasance or to damage in the highway, to 
 persons traveling there, but extends to cases of misfeasance,'' and 
 to injury to persons or property outside of the highway,' yet 
 it is settled by the cases* that there is no such immunity with re- 
 gard to sewers and main drains. These belong to the cities and 
 towns, and although the road commissioners, who are given author- 
 ity to maintain them, are probably no more the agents of the 
 towns than highway surveyors, when exercising highway sur- 
 veyors' duties,^ still perhaps they have not so exclusive an 
 authority over sewers, and at all events the interest of the towns 
 
 Wurran v. BMon (Mass. May 23, 1890) 8 L. R. A. 243. 
 
 ^See Walcolt v. Swampscolt, 1 Allen, 101; Tindley v. Salem, 137 Mass. 
 
 171; Manners v. Haverhill, 135 Mass. 165. 
 ^Holman v. Toicmend, 13 Met. 297; Smith v. Dedham, 8 Cush. 522. See 
 
 Benjamin v. Wheeler, 8 Gray, 409, 15 Gray, 486; Turner v. Dartmouth, 
 
 13 Allen, 291; Bi alley v. Southboroiigh, 6 Ciisli. 141. 
 *Emery v. Lowell, 104 Mas.s. 13, 17; Merrifield v. Worcester, 110 Mass. 216, 
 
 221; Murphy v. Lowell, 124 Mass. 564; TindLy v. Salem, 137 Mass. 17l', 
 
 172; Staiichfieldy. Newton, 142 Mass. 110, lio, 2 New Eng. Kep. 526'; 
 
 Child V. Boston, 4 Allen, 41, 52. 
 *Barney v. Lowell, 98 Mass. 570; Nealley v. Bradford, 145 Mass. 561, 564, 5 
 
 New Eng. Rep. 515. See Caspary v. Portland (Or. Oct. 27, 1890)24Pac 
 
 Rep. 1036.
 
 348 IMPOSED DUTIES, PERSONAL. [Part II 
 
 in the sewers is so rlistinct from that of the public at large that 
 they are held, witli reason, to the ordinary responsibilities of own- 
 ers.' So if, by a sj'steni of drains, a city artificially diverts sur- 
 face water from its natural course and accumulates it upon the 
 plaintiff's land in such quantities as to create a private nuisance,, 
 it may be liable in an action.'* So if it fails to keep a culvert 
 under a highway in such a condition as not to obstruct a natural 
 stream,' or for a failure to keep sewers in repair after construc- 
 tion." 
 
 In Bates v. ^Vesiborough (Mass.), 7 L. R. A. 156, decided Feb- 
 ruarv 27, 1890, a municipal corporation is declared to be liable for 
 injuries to a land owner, caused by the backing up of water in a. 
 drain which he had a right to maintain, by reason of negligence 
 on the part of the corporation in permitting the channel into- 
 which such drain opened, and which was part of the sewerage system 
 of the corporation, to become obstructed, or in maintaining the 
 same too small in size without any defect in the original plan, or 
 for the diversion by it of surface water from its natural course,, 
 and turning such quantities of it into such channel that its capacity 
 for carrying off the drainage was not equal to the demand made 
 upon it. The rule is recognized that if a private land owner col- 
 lects surface water into a definite, artificial channel and discharges- 
 it upon his neighbor's land, he is liable to an action.' And it is- 
 said that when the defendant would be liable for a direct dis- 
 charge, he would be liable also if the water was deflected upon 
 the plaintiff's land by an obstacle to its direct course, when that 
 obstacle was set up by the defendant, or was negligently allowed 
 to remain when he ought to remove it. It would not matter that 
 some water would reach the obstacle if the defendant's drain were 
 
 ^Bates V. Westhorough (Mass. Feb. 27, 1890) 7 L. R. A. 156. See, furtlier, 
 Oliver v. Worcesier, 102 Mass. 489, 500; Haskell v. Mw Bedford, 108 Mass. 
 208; Hand v. Brookline, 126 Mass. 324. 
 
 ^Manning v. Lowell, 130 Mass. 21, 25; Brayton v. Fall River, 113 Mass. 218;, 
 226. 
 
 ^Parker v. Lowell, 11 Gray, 353. 
 
 *Gould V. Boston, 120 Mass. 300; Phelps v. Mankato, 23 Minn. 276; Brad- 
 bury V. Benton, 69 Me. 194. 
 
 '•White V. Ghapin, 12 Allen, 516, 520; Curtis y. Eastern R. Co. 98 Mass. 
 428 431; Rathke v. Gardner, 134 Mass. 14, 16; Jackman v. Arlingtor^ 
 Mills, 137 Mass. 277, 283; Vassidy v. Old Colony R. Co. 141 Mass. 174, 179^ 
 1 New Eng. Rep. 606.
 
 I 
 
 Cliap. XY.] RULE OF LIABILITY IN NEW ENGLAND. 3-i9 
 
 not there, provided the drain brings down more than otherwise 
 would come, and causes the flooding of the phiintiff's land by this 
 ■excess.' The ordinary liability of a tort-feasor who should 
 stop a drain belonging to the plaintiff Avould exist if he should 
 stop that drain by causing an otherwise lawful discharge of water 
 into the outlet of the plaintiff's drain, the M-ater thus discharged 
 acting as a dam or obstacle to the plaintiff's water. It is well 
 settled that a town has no prerogative to flood the lands or to stop 
 the drains of other land owners without paying for it, and if it 
 ■does so without authority of law, it is liable to an action of tort." 
 While it is true that a town is not liable for interrupting the flow 
 ■of surface water or for discharging or turning surface water 
 upon adjoining land to a considerable extent, if not through a 
 definite channel, yet this is so because no land owner is liable for 
 doing so.' So a town is not liable to an action at common law 
 for acts which are done under a statute, for instance, in the repair 
 of highways, or, it seems, in the construction of sewers, for which 
 the statute provides a remedy by petition." But the case is 
 clearly different when a city or town has caused the plaintiff's land 
 to be flowed in a M-ay which would be actionable as against a pri- 
 vate person, and which cannot be taken to have been contemplated 
 by the statute under which it acts, or to have been paid for bv 
 the compensation allowed in respect of the original scheme. 
 Thus, in the case of sewers, it is settled that if the plaintiff 
 can prove that the injury was caused bj- the negligence of the 
 city, either in the original construction of the sewer, or in not 
 keeping it free from obstructions, he may maintain an action 
 against the city.^ 
 
 ' Curtis V. Eastern R. Co. 98 Mass. 428. 
 
 ^Hill V. Boston, 122 Mass. 344, 358. See HitcJiins v. Frosthurg, 68 Md 100 
 10 Cent. Rep. 539. 
 
 ^Emery v. Lowell, 104 Mass. 13, 16, 17, explaining Barry v. Loicell, 8 Allen, 
 128, and Turner v. Dartmouth, 13 Allen, 291. See Gannon v. Hargadon, 
 10 Allen, 106; Franklin v. Fisk, 13 Allen, 211; Batei v. Smith, 100 Mass' 
 181; Morrill v. Hurley, 120 Mass. 99. 
 
 *Emery v. Lowell, 104 Mass. 13, e.xplaining Flagg v. Worcester, 13 Gray, 601 ; 
 Manning v. Loicell, 130 Mass. 21, 22; Nealle'y v. Bradford, 145 Mass.' 56l' 
 5 New Eng. Rep. 515. See Hull v. Westfield, 133 Mass. 433; Perry v! 
 Worcester, 6 Gray, 544; Benjamin v. WJieeler, 8 Gray, 409, 15 Gray, 486. 
 '•Emery v. Lowell, 104 Mass. 13, 17; Merrifield v. Worcester, 110 Mass. 216, 
 221; Murphy v. Loicell, 124 Mass. 564; Tindley v. Salem, 137 Mass. 171^ 
 172; Stanchfield V. NeiDton, 142 Mass. 110, llS, 2 New Eng. Rep. 526*; 
 Child V. Boston, 4 Allen, 41, 52.
 
 350 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 But in Kennison v. Beverly, 146 Mass. 467, 6 New Eng. Rep. 
 133, it was ruled that a land owner has no remedy by action against 
 a town for an injury to his premises from surface water collected 
 in gutters and catch-basins below the surface, and from which the 
 water percolates through the soil, when such gutters and catch- 
 basins are maintained by the town as a part of the system of high- 
 ways which it is bonnd to keep in repair. In that case the plain- 
 tiff complains that her land is injured by surface water which is 
 collected in drains or gutters by the sides of the streets, and is 
 thereby conducted into a pit or catch-basin on the side of Bartlett 
 Street, directly opposite to her house, and from 8 to 10 feet there- 
 from, whence the water passes "through the soil and the wall into- 
 her cellar." There was evidence that this catch-basin was con- 
 structed with "its sides made of loose rocks nncemented," and 
 " with a small pipe underground as its only outlet," and that this 
 was " completely choked up with sticks and leaves." The streets 
 were public ways. The evidence does not show by whom the 
 drains or gutters and the catch-basin were constructed, but there 
 was evidence that they were maintained by the town as a part of 
 the system of highways which it was bound to keep in repair. The 
 drains and catch-basin were within the limits of the highways. 
 The principles declared in Turner v. Dartmouth^ 13 Allen, 291 ;. 
 Barry v. Lowell, 8 Allen, 1-27; I'lagg v. Worcester, 13 Gray, 601, 
 and Franldin v. Fish, 13 Allen, 211, are said to govern this case.' 
 It was decided that if a town, by its agents, or if the highway sur- 
 veyors of a town, in consti'ucting or repairing highways, cause the 
 surface water to fiow upon the land of an adjoining proprietor, 
 there is no remedy by action. The owner of the adjoining land 
 can protect himself by such barriers as he may choose to build, and 
 in some cases he has a remedy under Pub. Stat,, chap. 52, § 12 or 
 §15. There is recognized no distinction, in respect to legal lia- 
 bility, between an injury to land from surface water collected in 
 gutters and catch-basins, which are below the surface of the ad- 
 joining land, and from which the water percolates through the soil, 
 and an injury from surface water which, overflowing the gutters 
 and catch-basins, runs over the adjoining land, or wdiich is turned 
 
 > See Emery v. Lowell. 104 Mass. 13, 16; Jferrifield v. Worcester, 110 Mass. 
 216. 2M. But see Parker v. Larsen (Cal. Oct. 30, 1890) 24 Pac. Rep. 989.
 
 Chap. XY.j LIAUILITY OF UNINCORPOKATED TOWN OR VILLAC.E. 351 
 
 directly upon it. Even if there was such an artificial accniinila- 
 tion of water in such a case as to fall within White v. Chcipin, 12 
 Allen, 510, and 2[<inning v. Lowell, 13 Mass. 21, and the troul)]e 
 was due to negliu^ence in construction rather than to the plan 
 adopted, still it may be that a town will not be liable to one whose 
 land is flooded from the catch-basin of a city sewer, in the absence 
 of such evidence that it did the work, as was found in Deane v. 
 Bandolph^ 132 Mass. 475 ; ^Yaldron v. Haverhill^ 143 Mass. 582, 
 3 New Eng. Rep. 6S3, and Doherty v. Braintree, US Mass. 495, 497. 
 It may be that defects in such a catch-basin are to be regarded as 
 defects in surface drainage within the limits of the highway, and 
 therefore as defects in the repair of the highway, the charge of 
 which is committed by statute to the highway surveyors. High- 
 way surveyors in the performance of their statutory duties are held 
 to be public officers and not agents of the town, partly because of 
 the town's want of control over them, and partly because the duty 
 to repair the surface of highways is regarded as a public duty fron> 
 which the town derives no special advantage in its corporate 
 capacity.' 
 
 Section z^.— Limited Liability of Unincorporated 
 Town or Village. 
 
 An unincorporated town, unless made so by statute, is not liable 
 for the acts of its officers in digging a ditch across the land of one 
 of its citizens, by which foul water was conducted over and upon 
 the premises of another, and there created a nuisance, when the 
 acts were done in the execution of a corporate duty imposed by 
 law upon the town." In case of an incorporated city the creation 
 of such an unmitigated nuisance would constitute prima facie 
 such a cause of action as might render it liable in the absence of 
 any justification.^ The authority and liability of quasi public 
 corporations known as towns, as distinguished from municipal cor- 
 porations incorporated under special charters, are generally only 
 
 ^WalcrAt V. Swampscoit, 1 Allen, 101; Barney v. Lowell, 98 Mass. 570, 571; 
 
 Tiiulley V. Salem, 137 Mass. 171, 174; Blanchard v, Ayer, 148 Mass. 174* 
 
 176. 
 ''Seele v. Deeving, 79 Me. 343, 4 New Eng. Rep. 557. 
 ^Cumberland & 0. 0. Corp. v. Portland, 02 Me. 505.
 
 352 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 sueli as are defined and prescribed by general statutory provisions. 
 Some things they may Lawfully do, and other things they have no 
 authority for doing. To create a liability on the part of a town, 
 not connected with its private advantage, the act complained of 
 must be within the scope of its corporate powers as defined by the 
 statute. If the particular act relied on as the cause of action be 
 wholly outside of the general powers conferred upon towns, it can 
 in no event be liable therefor, whether the performance of the act 
 M'as expressly directed by a majority vote, or was subsequently 
 ratified.' So a town is not liable for the unauthorized and illegal 
 acts of its ofiicers, even when acting within the scope of their du- 
 ties,* but it may become so when the acts complained of were 
 illegal, but done under its direct authority previously conferi-ed or 
 subsequently ratified.' Where the allegations in an action for in- 
 jury do not bring the acts complained of within the scope of the 
 corporate powers of the town, or aver that they were performed 
 by its officers in the execution of any corporate duty imposed by 
 law upon the town, no liability is shown.* Where there is no in- 
 timation that the acts were done in connection with the making 
 or rej^airing of any highway or town way, which the law imposed 
 upon the town, or in relation to any drain or sewer laid out, or 
 attempted to be laid out, by the town authorities, for which it 
 might under certain circumstances become liable; ^ or in empty- 
 ing a common sewer upon the property of the plaintiff outside of 
 the public works, as in Locks cfe Canals v. Loioell, 7 Gray, 223, — 
 no cause of action is stated. Allegations that the defendants 
 " wrongfully opened and dug a ditch across the main road " in a 
 town and into an artificial ditch in the rear of a tripe and bone- 
 boiling establishment, from which a cesspool of stagnant and filthy 
 water was then and there collected, and then and there continued 
 said ditch across the land of a resident, 200 feet in the direction 
 of the plaintiffs laud, and out of the natural course of said water, 
 and onto the plaintiff's land, and along through the same into his 
 
 ^Morrison v. Lawrence, 98 Mass. 219. 
 
 ^ Brown v. Vinalhaven, 65 Me. 403; Small v. Dinmlle, 51 Me. 359, 
 
 ^Woodcock V. Calais, 66 Me. 234, and cases there cited. 
 
 ^Anthony v. Adavu, 1 Met. 284. 
 
 ^Estes V. China, 56 ]\Ie. 407; Franklin Wharf v. Portland, 67 Me. 46.
 
 Chap. XY.] LIABILITY OF UNINCORPORATED TOWN OR VILLAGE. 353 
 
 millpond, when it is quite evident that a town, independent of any 
 statutoiT authority, has no corporate power to dig ditches across 
 another's hmd, and that such an act is ultra vires, states no liabil- 
 ity of the town, and anv express majority vote based on a proper 
 article in a warrant calling a meeting of the town directing such 
 acts, would create no liability on the part of the town.' A vil- 
 lage charter empowering the building and maintaining of sewers 
 does not impose their construction as a duty, but permits it as a 
 privilege, and the village is liable for damages from a sewer neg- 
 ligently constructed/ 
 
 ^CusMng v. Bedford, 125 Mass. 52C; Lemon v. Newton, 134 Mass. 476. 
 « Winn V. Rutland, 53 Vt. 4S1. 
 
 23
 
 CHAPTER XYI. 
 
 NAVIGABLE WATERS; NEGLIGENCE IN AT>MIRA.LTY; RIGHTS 
 AND THEIR EXERCISE. 
 
 Sec. 35. Watercourses, Lakes and Ponds. — Easements therein. 
 See. 36. Riparian and Littoral Rights. 
 
 Sec. 37. Rule as to Contrilutory Negligence in Admiralty Juris- 
 diction. 
 
 a. Negligence Defined. 
 
 b. Slight Negligence. 
 
 c. Ordinary Negligence. 
 
 d. Gross Negligence. 
 
 e. Contrihutory Negligence and Proximate Cause. 
 
 f. In Admiralty Jurisdiction, 
 
 Sec. 38. Navigable Waters ivithin the Jurisdiction of Admiralty. 
 Sec. 39. Navigable Waters. — Tidal Streams. 
 
 Section db. — Watercourses, Lakes and Ponds. — 
 Easements therein. 
 
 That water is included in the term " land " is taught by the text- 
 writers. " Land, terra, in the legal signification, comprehendeth 
 any ground, soile or earth whatsoever, as meadows, pastures, woods, 
 moores, waters, marishes, furses and heath. Lastly, the earth hath 
 in law a great extent upwards, not only of water, as hath been said, 
 but of ayre and all other things even up to heaven, for cujus est 
 solum ejus est usque ad ccdum, as is holden 14 H. 8, fo. 12; 22 
 Hen. 6, 59 ; 10 E. 4, 14 ; Registrum Origin., and in other bookes." ' 
 Blackstone says : " The word 'land ' includes not only_ the face of 
 the earth, but everything under it or over it." ' 
 
 So it was held in Greye's Case, Owen, 20, that fish in a pond 
 passed, not to the executor, but to the heir, the court giving judg- 
 ment that he who had the water should have the fish, and they are 
 held as part of the realty.^ 
 
 Washburn says: "It may be added in general terms that every 
 
 1 Co. Litt. 4a. 
 
 »2 Bl. Com. 18; Bouv. Law Diet, title Land; 1 Greenl. Cruise, 46. 
 
 'Bouv. Law Diet, title Pond.
 
 Chap. XVI.] WATEKCOURSES, LAKES AND POMDS. 3o6 
 
 easement or servitude in lands, being an interest tlierein, can bo 
 acquired only by grant or vvliat is deemed to be evidence of an 
 oriofinal grant ; and in this are embraced the rights in one man to 
 take away the soil or profits of the soil of another, called ^p/'ofit a 
 prendre^ if such right be of a freehold or inheritable character. 
 In the matter of water, the owner of the bed of a stream may grant 
 a certain quantity of water to be taken out of it, or a certain amount 
 of water-power measured and ascertained." But a man may grant 
 trees growing on his land, corn in the ground or fruit upon trees- 
 without deed. So of the timber, stone or other materials of a 
 house then standing upon his estate ; and the donee in such case 
 may take it away after the donor's death. The law regards these 
 things as so much of the character of chattels as not to require the 
 formality of a deed to pass property in them.' 
 
 The term "natural easement" is applicable especially to the 
 case of flowing water; but an easement, when technically consid- 
 ered, is an interest which one man has in the estate of another by 
 grant or by prescription." 
 
 By the common law, the right of the riparian proprietor to the 
 flow of the stream is inseparably annexed to the soil, and passes 
 with it, not as an easement or appurtenance, but as a part and par- 
 cel of it.' 
 
 Every owner of land through which a natural stream of water 
 flows has the right to have it flow from his land unobstructed in 
 its natural channel,* unless such right has been curtailed by grant 
 or adverse possession. This is said to be a natural right jjuhllGi 
 juris. Language is often used which seems to imply that this 
 right rests upon an easement which an upper owner upon a stream 
 has in the lands below him for the passage of the water over such 
 lands in its natural channel, and this supposed implication has some 
 
 ' Washb. Real Prop. bk. 3, chap. 4, § 3; Braces. Yale, 10 Allen, 441. 
 ^Scriwr v. Smith, 100 N. Y. 471, 1 Cent. Rep. 767; Stokoe v. Singen, 8 El. & 
 
 Bl. 36; Johnson v. Jordan, 2 Met. 234. 
 ^Uix V. Haqgin, 69 Cal. 255; Oardner v. Neichurgh, 2 Jobn.s. Cb. 102; Elliot 
 
 V. Fitchhurg R. Co. 10 Cusb. 191, 57 Am. Dec. 85; Olnei/ v. Feuner, 2 R. 
 
 I. 211, 57 Am. Dec. 711; Stein v. Burden, 24 Ala. 130, 60 Am. Dec. 453; 
 
 Blood V. Nashua & L. R. Co. 2 Gray, 137, 61 Am. Dec. 444. 
 *8turr V. Beck, 133 U. S. 541, 33 L. ed. 761; Ferris v. Wellborn, 64 Miss. 29; 
 
 Weiss V. Oregon I. & S. Co. 13 Or. 496; Variek v. Smith, 5 Pai^e, 143; 
 
 Palmer v. Mulligan, 3 Cal. 319; People v. Piatt, 17 Johns. 211; Hooker v. 
 
 Cummings, 20 Johns. 99; Scriver v. Smith, 100 N. Y. 471, 1 Cent. Rep. 707.
 
 35G IMPOSED DUTIES, PERSONAL. [Part II. 
 
 authoritj for its support." Sucli rights have some semblance to 
 easements, and no harm or inconvenience can probabl}' come from 
 classifyinor them as such for some purposes. But they are not, in 
 fact, real easements. Every easement is supposed to have its origin 
 in grant, or prescription, which presupposes a grant, and it does 
 not seem reasonable to suppose that the owner of land at the head 
 of a stream has an easement by grant or prescription, for its flow 
 over all the laud of the riparian owners for many miles to its 
 mouth. None of the usual covenants in a deed would be violated 
 because a natural stream of water flowed through the hind and the 
 upper owners therefore had an easement in such land. 
 
 In "Washburn on Easements (p. 19) it is said: "The terra ^natural 
 easements,' as applicable especially to the case of flowing water, is 
 often made use of by courts of common law, and is not likely to 
 mislead the reader, inasmuch as the context usually shows in what 
 sense the term is employed. But, as will appear hereafter, that an 
 easement when technically considered is an interest which one man 
 has in another's estate by grant or its equivalent, prescription, it 
 seems at first thought to be inconsistent to characterize what be- 
 longs to an estate as inseparably incident thereto, and forming part 
 and parcel thereof, by the name of easement or servitude. It may 
 be, in many respects and perhaps most respects, like an easement, 
 and may be treated accordingly, and yet will hardly come within 
 the requirements of what constitutes an easement at common law." 
 Again, at page 276, the learned author, speaking of the flow of 
 water in natural streams, says : " The right of enjoying this flow 
 without disturbance or interruption by any other proprietor is one 
 jure naturce and is an incident of property in the land, not an ap- 
 purtenance to it, like the right he has to enjoy the soil itself in its 
 natural state, unaffected by the tortious acts of a neighboring land 
 owner. It is an inseparable incident to the ownership of land, 
 made by an inflexible rule of law an absolute and fixed right, and 
 can only be lost by grant or twenty years' adverse possession." 
 
 In Angell on Watercourses, § 90, it is said : " The right to the 
 use of the flow of water in its natural course and to the mainte- 
 nance of its fall on the land of the proprietor is not what is called 
 an easement, because it is inseparably connected with and inherent 
 ^Cary v. Daniels, 5 Met. 236; Pre»cott v. Williams, 5 Met. 429.
 
 Chap. XVI.] WATERCOURSES, LAKES A>;D I'OMDS. 357 
 
 in the property in the land; it is a parcel of the inheritance and 
 passes with it." ' 
 
 llilliard states that a " waterconrse is regarded in law as a pai-t 
 of the land over which it flows. Upon this principle it will pass 
 with the latter by a deed or patent, unless expressly reserved. So 
 the right to a watercoui'se is a freehold interest of which the 
 owner cannot be deprived but by the lawful judgment of his 
 peers or due process of law." " But while it must be admitted 
 that water in a pool upon a man's own estate is his property, and 
 part of his real estate, it is denied that he has any property in the 
 water of a stream which passes over his soil but a simple usufruct 
 while it passes along.' This use, it is admitted, however, author- 
 izes the actual taking of a reasonable quantity of the water for 
 domestic, agricultural and manufacturing purposes.* 
 
 The right to flowing water is now well settled to be a right in- 
 cident to property in the land.* It is a right puhlici juris, of 
 such character that whilst it is common and equal to all through 
 whose land it runs, and no one can obstruct it or divert it, yet, as 
 one of the beneficial gifts of Providence, each proprietor has a 
 right to a just and reasonable use of it as it passes through his 
 land. 
 
 A watercourse is a living stream of water ordinarily flowing in 
 a certain direction, throngh a defined channel with bed and banks. 
 There is a broad distinction between a stream of water and those 
 occasional outbursts of water wdiich, in times of freshets, fill up 
 the marshy places and run over and inundate the adjoining lands. 
 A watercourse need not be shown to flow continuously ; its chan- 
 nel may sometimes be dry, but there must always be substantial 
 indications of a stream which is ordinarily and most frequently a 
 moving body of water. To constitute a natural watercourse there 
 must be a bed and banks and evidences of a permanent stream of 
 running water.' A channel made by mere surface water re- 
 
 1 See Scriver v. Smith, 100 N. Y. 471, 1 Cent. Rep. 763. 
 »2Hilliar(l, Real Prop. 203. 
 
 2 •'S Kent, Com. 439, 445. 
 
 '•Elliot V. Fitclibtirg R. Co. 10 Cnsh. 191; Stokoe v. Singers, 8 El. & Bl. 30; 
 ScHver v. Smith, 100 N. Y. 471, 1 Cent. Rep. 763. 
 
 ^Weis V. Madison. 75 Ind. 241, 39 Am. Rep. 135; Hoyt v. Hudson, 27 Wis. 
 656, 9 Am. Rep. 473; Howard v. Ingersoll, 54 U. S". 13 How. 381-427, 14 
 L. ed. 189, 209; Rice v. Evansville, 108 Ind. 7, 6 West. Rep. 244.
 
 358 IMPOSED DUTIES, PERSONAL. [Part IL 
 
 suiting from rain and snow is not a watercourse, unless there is 
 ordinarily and most frequently a moving body of water flowing 
 tlirough it. Falling rain and melting snow constitute surface wa- 
 ter, which the owner of land upon which it accumulates may turn 
 into a natural watercourse through his own land, or which he may 
 by proper legal proceedings have carried off through the adjoin- 
 ing land of others.' 
 
 There is a distinction between spasmodic overflowing of surface 
 waters, and natural watercourses.'' A ravine cannot be termed a 
 natural watercourse. It is simply an outlet for surface water at 
 certain seasons of the year. It has no defined bed or channel with 
 banks and sides. It has no permanent source of supply, and no 
 living or spring water ever courses through it. It is therefore not 
 governed by the well-settled rules applying to natural streams. 
 No right can be claimed to run such water upon the land of an- 
 other, or to drain sag-holes into a ravine, because it is a water- 
 course. It must be governed by the law relating to the flow 
 and disposition of surface water, unless by the long acquiescence 
 an easement has been acquired.^ A small natural body of water 
 bounded by mountains and low swamps, fed by two sluggish 
 streams, and shaped like the bowl of a spoon, being 16 feet deep 
 in places, while the outlet is only 4 feet deep, and having no 
 thread or current, is a pond or lake, and not a stream or river." 
 
 Section 36. — Riparian and Littoral Rights. 
 
 Riparian rights are those of access to the navigable part of the 
 river from the front of one's lot ; to make a landing, wharf or pier 
 for his own use or for the use of the public, — subject to such gen- 
 eral rules and regulations as the Legislature may see proper to im- 
 pose for the protection of the rights of the public, — and to exclude 
 
 ^Stanchfield v. Newton, 143 Mass. 110, 2 New Eng. Rep. 526; Hill v. Gincin- 
 naii W & M. R. Co. 109 Ind. 511, 8 West. Rep. 47; Rice v. Evamville, 
 108 ind. 7, 6 West. Rep. 244; Jeffers v. Jeffers, 107 N. Y. 650, 9 Cent. 
 Rep. 846; Barklcy v. Wilcox, 86 N. Y. 144; Bailey v. Schnitmis, 45 N. J. 
 Eq. 178, 11 Cent. Rep. 737; Ferris v. Wellborn, 64 Miss. 29; Chicago, K. & 
 W. R. Co. V. Morroio, 42 Kan. 339. 
 
 ''Taylor v, Fickas, 64 Ind. 167. 
 
 ^Gregory v. Bush, 64 Mich. 37, 7 Wast. Rep. 169. 
 
 *Qouverneur v. National Ice C«. 57 Hun, 474. 
 
 '^^^
 
 Chap. XVI.] RIPARIAN AND LITTORAL RIGHTS. 359 
 
 tlie public from the use of the banks, except with his consent, ex- 
 cept iu cases of necessary landing in an emergency when navigat> 
 ing the water.* The owner can be deprived of his right of access 
 only in accordance with established law, and, if necessary that it 
 be taken for public use, upon due compensation," 
 
 The owner of an estate upon the tide waters is entitled to com- 
 pensation, not only for the land actually taken for the construction 
 of a public road, but also for the change of his premises from 
 river-side to road-side property, including his individual and par- 
 ticular right to use the shore of the river in which he had no pro- 
 prietary interest.^ But this right does not include the right to 
 redress for an obstruction not against the front of the plaintiff's 
 land, even when it entirely closes the highway/ A riparian 
 owner on a river, whether navigable or not navigable, is entitled 
 to recover damages from a raih-oad company for obstruction of 
 access to his property from the river/ A littoral or sea shore 
 proprietor, like a riparian proprietor, has a right to the water 
 frontage belonging by nature to his land, although the only prac- 
 tical advantage of it may consist in the access thereby afforded him 
 to the water for the purpose of using the right of navigation.' 
 The principle upon which the rights of littoral proprietors to lands 
 reclaimed from the sea are determined is that lands reclaimed 
 
 Wompion V. EawJcins (Ala. June 17, 1890) 9 L. R. A. 387; Button v. Strong, 
 68 U. S. 1 Black, 25, 17 L. ed. 29; St. Paul & P. R. Co. v. Schurmeier, 74 
 U. S. 7 Wall. 272, 19 L. ed. 74; At'^e v. Northwestern JJ. Packet Co. 88 
 U. S. 21 Wall. 389, 22 L. ed. 619; Gould, Waters, 278. 
 
 ^Kane v. Metropolitan El. R. Co. (Ct. App Jan. 13, 1891) 34 N. Y. S. R. 876, 883, 
 overruling Gouldv. Hudson River R. Co. 6 N. Y, 522; Weber v. State Har- 
 bor Comrs. 85 U. S. 18 Wall. 57, 21 L. ed. 798; Atlee v. Northwestern U. 
 Packet Co. 88 U. S. 21 Wall. 389, 22 L. ed. 619; Richardson v. Boston, 65 
 U. S. 24 How. 188, 16 L. ed. 625; Baltimore & 0. R. Co. v. Chase, 43 Md. 
 23; Harrison v. Sterett, 4 Har. & McH. 540; Diedrich v. Northioe.^tern 
 Union R. Co. 42 Wis. 248; Delaplaine v. Chicago & N. W. R. Co. Id. 214; 
 Meyers v. St. Louis, 8 Mo. App. 266; Carron v. Baltimore, 32 U. S. 7 Pet. 
 243, 8L. ed. 672; Clark v. Peckham, 10 R. I. 35, 38, 9 R. I. 455; Morrill 
 V. St. Anthony Falls Water-Power Co. 26 Minn. 222; Norfolk v. Cooke, 27 
 Gratt. 430, 435. 
 
 ^BuccleucJi V. Metropolitan Board of Works, L. R. 5 H. L. 418; Case v. Lof- 
 tus, 39 Fed. Rep. 730, 5 L. R. A. 687. 
 
 ^Bailey v. Philadelphia, W. <& B. R. Co. 4 Harr. (Del.) 389; Boston & W. R. 
 Corp. V. Old Colony R. Corp. 12 Cush. 605. 
 
 ^North Shore R. Co. v. Pion (Eng. Privy Council, August 1, 1889) 12 Mon- 
 treal Leg. News, 395. 
 
 *Gould, Waters, § 149; Buceleuch v. Metropolitan Board of Works, L. R 5 
 H. L. 418; Midryy. Norton, 100 N. Y. 424. 1 Cent. Rep. 752.
 
 360 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 from the sea are apportionable among the littoral owners accord- 
 ing to the lateral lines of uplands possessed by them.' As to op- 
 posite, as M'ell as upper and lower, riparian proprietors, each is 
 entitled to the use of the stream so far as is reasonable, conforma- 
 ble to the usages and wants of the community, and not inconsis- 
 tent with a like reasonable use by the other proprietors.^ A ripa- 
 rian owner has the right to use the stream and divert its waters if 
 he does not do so to a material and appreciable degree, and leaves 
 sufficient for the use of other riparian proprietors ; but not to 
 such an extent as to appreciably or materially lessen the stream.^ 
 While the authorities are not in entire harmony in reference to 
 the respective rights of navigators of public streams above the ebb 
 and flow of the tide, and of riparian owners, the better opinion 
 seems to be that the right to the use of the stream as a highway, 
 and to land for purposes of receiving and discharging freight and 
 passengers, are distinct, and those navigating the river have no 
 right, as incident to the right of navigation, to land upon and use 
 the bank for the purpose of loading and unloading vessels, with- 
 out the consent of the owner, unless in cases of necessity.'' 
 
 In Washburn on Easements (p. 554) the author observes : "In 
 regard to the right to land upon other points of the banks of a 
 navigable stream than those which have in some way become pub- 
 lic landings, the law would seem to confine it to cases of necessity^ 
 where, in the proper exercise of the right of passage upon the 
 stream of water, it becomes unavoidable that one should make use 
 of the bank for landing upon or fastening liis craft in the prose- 
 cution of his passage." 
 
 Section 37.— Rule as to Contributory JVegUgence in 
 Admiralty Jurisdiction. 
 
 We have seen that mere surface water — that which does not run 
 in any definite course or confined channel — is regarded as a com- 
 
 ^Deerfield v. Arms, 17 Pick. 41; Wonson v. Wonson, 14 Allen, 85; Thornton 
 V. Grant, 10 R. I. 477; Emerson v. Taylor, 9 Me. 44; O'Donnell v. Eelsey, 
 4"Saadf.'203, affirmed, 10 N. Y. 412. See also Ang. Tide Waters, 258-, 
 Mulry V. Norton, 100 N. Y. 424, 1 Cent. Rep. 752; Gould, Waters, §§ 162- 
 165. . 
 
 ^Pinney v. Luce, 44 Minn. 3G7. 
 
 ^Ne^D York Rubber Co. v. Bothery (Sup. Ct. July 18, 1890) 32 N. Y. S. R. 905. 
 
 *Compton V. Hawkins (Ala. June 17, 1890) 9 L. R. A. 387.
 
 Chap. XVI.] CONTRIBUTORY NEGLIGENCE IN ADMIRALTY. 3GI 
 
 men enemy, ao;ainst which any land owner affected by it may fight,' 
 but that, in doing so, regard must be had to another recognized 
 maxim of law, Sic utere tuo ut alienum non loedas.^ But he may 
 not collect it in a ditch, etc., and discharge it upon the land of 
 another.* 
 
 In his efforts to protect himself from injury from flood, whether 
 from rain-fall, or ovei'flow of a watercourse, or the giving way of 
 embankments or mill-dams, or in his attempts to utilize flowing 
 water, or in the exercise or vindication of any of his rights as a 
 riparian owner, he must be watchful that his negligent acts do not 
 involve unnecessary injury to his neighbors. 
 
 a. JYegligence Defined. 
 
 ^Negligence in a legal sense is a failure to observe for the pro- 
 tection of the interests of another that degree of care, precaution 
 and vigilance which the circumstances demand, whereby such other 
 person suffers injury.* It is the omission to do something which 
 a reasonable man, guided by those considerations which ordinarily 
 regulate the conduct of human affairs, would do, or doing some- 
 thing which a prudent and reasonable man would not do.^ The 
 basis of liability in negligence cases is the violation of some legal 
 duty to exercise care.* 
 
 b. Slight Kegligence. 
 
 One who does an act involving the least possible danger to oth- 
 ers is only required to use a slight degree of care in its perform- 
 ance, and that degree of caution constitutes wliat is called "sh'o-ht 
 care," and the want of it "slight negligence." It is that degree 
 
 '^Hoyt V. HufUon, 27 Wis. 656; EosJier v. Kansas City, St. J. & G. B. R. Co 
 
 60 Mo. 333. 
 "^Gannon v. Hargadon, 10 Allen, 106; Ooodale v. Tattle, 29 N. Y. 459. 
 ^Rathke v. Gardner, 134 Mass. 14; Farrel v. London, 12 U. C. Q. B. 343; 
 
 Reeves v. loronto, 21 U. C. Q. B. 157; Perdue v. Chinguacousy, 25 U. 
 
 C. Q. B. 61. 
 ^Diamond State Iron Works v. Giles (Del. Oct. 27, 1887) 9 Cent. Rep. 577; 
 
 Pennsylvania R. Co. v. Peters, 116 Pa. 206. 8 Cent. Rep. 405; Lehigh & W. 
 
 B. Goal Co. V. Lear (Pa. April 25, 1887) 8 Cent. Rep. 107. 
 '^Blyth V. BirmingJiam Waterworks Co. 11 Exch. 783. 
 'Cusick V. Adams, 115 N. Y. 55.
 
 •362 IMPOSED DUTIES, PERSONAL. Part II. 
 
 of diligence which a person of common sense, not a skilled work- 
 man or expert in any particular business or employment, would 
 •exercise in such employment; such care of himself or of his prop- 
 erty, as one habitually careless would take.' The absence of this 
 ■degree of attention is called slight negligence. 
 
 c. Ordinary JVegligence. 
 
 Where circumstances clearly demand precautionary measures, 
 and an injury arises from an omission of them, this is want of or- 
 dinary caution and skill.'' Ordinary care is that degree of watch- 
 fulness which is exercised by ordinarily prudent persons under 
 similar circumstances." It isw hat in the particular case involved 
 would be the conduct of a majority of men in like circumstances. 
 It is such a degree of caution as will be in due proportion to the 
 injury or danger to be avoided.* The measure of ordinar}^ care 
 is such care as must, by common prudence, be usually exercised in 
 positions of like exposure and danger.' Ordinary negligence is 
 the want of this degree of care. 
 
 d. Gross JYegUgence. 
 
 "Where it is said that great care is demanded, it is intended to 
 indicate that degree of practical attention which persons of the 
 greatest prudence and skill usually exercise in similar cases. It 
 answers to a degree of responsibility above that exacted of an or- 
 dinarily prudent man, and below that exercised by an insurer. It 
 is the exercise of the greatest uniform practical diligence and care, 
 and what this is, in any given case, is tested by that which men of 
 the greatest prudence exhibit under like circumstances. In a par- 
 ticular business it is the skill and care usually exercised by an ex- 
 
 ^Louixville & N. R. Go. v. McCoy, 81 Ky. 403; Mark v. Hudson River Bridge 
 Co. 103 N. Y. 28, 4 Cent. Rep. 203. 
 
 ^MeOrew v. Stone, 53 Pa. 436; Thoman v.WincJiester, 6 N. Y. 397; Jackson- 
 ville St. R. Co. V. Chappell, 21 Fla. 175. 
 
 ^Needham v. Louisville & N. R. Co. 85 Ky. 423; Anstin & N. R. Co. v. Beatty, 
 73 Tex. 592; Chicago & A. R. Co. v. Adler, 129 111. 335; Richmond & D. 
 R. Co. V. Howard, 79 Ga. 44; Toledo & W. R. Co. v. Goddard, 25 lud. 185. 
 
 *Brnst V. Hudson River R. Co. 24 How. Pr. 97. 
 
 ^Gaynor v. Old Colony & N. R. Co. 100 Mass. 208; Hill v. Smith, 39 Conn. 
 210; Reynolds v. Burlington, 52 Vt. 300.
 
 ■Chap. XVI.] CO^'TKIBUTOEY NEGLIGENCE IN ADMIRALTY. 303 
 
 pert.' Such care is required of carriers and otliers who employ 
 dangerous agencies for their own profit. " 
 
 So far as it is possible to define gross negligence it may be said 
 to be such absence of care — when the consequences of such want 
 of care would appear probable, if tlie slightest thought were given, 
 but where it is not given — as will charge the person so neg]i<?ent, 
 not necessarily with an intention to inflict the injury resultino- 
 from his negligence, but with the same responsibility as though he 
 had actually intended it. Inasmuch as his entire want of care re- 
 sults to otliers in as much injury as though he had intended the 
 harm and damage, it is just that he shall suffer the same pecuniary 
 consequences as though guilty in intent. He is punished civilly, 
 and those who suffer are reinil)ursed, for the consequences of his 
 entire want of care, when he should have anticipated the result 
 thereof, but for his inexcusable thoughtlessness. 
 
 -e. Contributory JS^egUgenoe and Proximate Cause. 
 
 It becomes important in considering the law of negligence, as ap- 
 plied to the use of living streams, to ascertain what are navigal)le 
 waters of the United States in such a legal sense as to come within 
 the admiralty jurisdiction, for if navigable waters be within ad- 
 miralty jurisdiction, the rule, which prevails at common law, that 
 ■one cannot recover for an injury caused by his own negligence, or 
 where his own negligence contributed to the result, even though 
 the defendant was in fault,' does not, in its full force, apply. 
 
 ^Houston & T. C. R. Co. v. Gorbett, 49 Tex. 573; Carroll v. Staten Mand R. 
 Co. 58 N. Y. 126; Louisville City R. Co. v. Weams, 80 Ky. 420; Coddinqton 
 V. Brooklyn C. R. Co. 102 N. Y. 66, 2 Cent. Rep. 913; Moreland v. Buxton 
 & P. R. Corp. 141 Mass. 31, 1 New Eng. Rep. 909; The New World v. 
 King, 57 U. S. 16 How. 469, 14 L. ed. 1019; ^/laj-p v. Gray, 9 Bine 457- 
 Caldtcell v. New Jersey S. B. Co. 47 N. Y. 282. 
 
 ^Higgins v. Beioey, 107 Mass. 494; Palmer v. Delaware Jb K Canal Co 120 
 N. Y. 170. 
 
 ^Allen V. Mai7ie Cent. R. Co. 82 Me. Ill; JocJiem v. Robimon, 72 Wis. 199; 
 Riclimond & D. R. Co. v. Pickleseimer, 85 Va. 798; Louisville & N. R. Co'. 
 V. Hall, 87 Ala. 708; Trousduir v. Pacific Coast S. iS. Co. 80 Cal 521- 
 Phillips V. Ritchie County Ct. 31 W. Va. 477; Atkyn v. Waba.^h R. Co. 41 
 Fed. Rep. 198; Kyne v. Wilmington & N. R. Co. (Del. May 31. 1888) 13 
 Cent. Rep. 391; Qerty v. Haley, 29 W. Va. 98; Schoeirfeld v . Milwaukee 
 City R. Co. 74 Wis. 433; Moore v. Central R. Co. 24 N. J. L. 208; Run- 
 yon V. Central R. Co. 25 N. .J. L. 556; Drake v. Mount, 33 N. J. L. 441; 
 Pennsyhania R. Co. v. Matthews, 36 N. J. L. 531; Delaware, L. & W. R 
 Co. V. To fey, 38 N. J. L. 525 ; East Tennessee, V. & G. R. Co. v. Htiii, 88 
 Tenn. 33.
 
 364 IMPOSED DUTIES, PERSONAL. [Part IL 
 
 At common law one who suffers an injury from the want of 
 that ordinary care wliieh a prudent man would have exercised 
 under the circumstances, may be said to have caused the injury by 
 his contributory negligence. " Perhaps the rule may be stated thus: 
 One w'ho suffers an injury, to which the mere negligent act of an- 
 other has contributed, cannot recover therefor, if his own want of 
 such care as a prudent man would, under the circumstances, have 
 exercised, or the want of the exercise of such care on the part of 
 someone for whose negligence he is responsible, has proximately 
 contributed also to the result. Bat if another person, aware of his 
 negligence, is guilty of such conduct, contributing to the injury,, 
 as implies an indifference to the consequences to him, he may 
 recover. 
 
 The test of contributory negligence or want of due care is not 
 found in the failure to exercise the best judgment or to use the 
 wisest precaution, but allowance may be made for the influences 
 ordinarily governing human action, as what would under some cir- 
 cumstances be want of reasonable care may not be such under 
 others.' The contributory negligence which prevents recovei-y 
 for an injury must be such as co-operates in causing the injury 
 and without which the injury could not have happened." But it 
 need not be the sole cause of the injury; it is sufhcient, if it he 
 one of two or more concurring efficient causes, to bar recovery.* 
 But any negligence of the plaintiff, however slight, that contrib- 
 uted to the injury, precludes, at common law, his recovery.* 
 
 In WaMin v. Zmdon d; S. W. R. Co., L. K 12 App.'Cas. 51, 
 Lord Fitzgerald defines contributory negligence as " the ab- 
 sence of that ordinary care which a sentient being ought reason- 
 ably to have taken for his own safety, and which, had it been 
 exercised, would have enabled him to avoid the injury of which he 
 complained ; or the doing of some act which he ought not to have 
 done, and but for which the calamity would not have occurred." 
 Contributory negligence which will defeat a recovery consists in 
 
 'Lent V. NeiD York 0. <& H. E. R. Co. 120 N. Y. 467. 
 
 '^LeMyli Valley R. Co. v. Greiner. 113 Pa. 600, 4 Cent. Rep. 898; Fernandas 
 
 V. Sacramento City R. Co. 52 Cal. 45. 
 ^North Birmingham Street R. Co. v. Calderwood (Ala. Jan. 31, 1890) 7 So, 
 
 Rep. 360. 
 ^Sihoenfeld v. Miboaukee City R. Co. 74 Wis. 433.
 
 Cliap. XYL] CONTRIBUTORY NEGLIGENCE IN ADMIRALTY. 305 
 
 eucli acts or omissions on the part of the plaintiff, amonntinor to a 
 want of ordinary care, as, concurring or co-operating with the neg- 
 ligent acts of the defendant, are a proximate cause or occasion of 
 the injury.' 
 
 3lr. Justice Agnew in FairhanTcs v. Keri\ 70 Pa. 89, says : 
 *' Many cases illustrate, but none define, what is a proximate, and 
 what a remote, cause." A great array of cases state the rule 
 quite satisfactorily as follows: "It must appear, in order to 
 defeat the right of action, that but fur the plaintiff's negligence 
 operating as an efficient cause of the injury, in connection with 
 the fault of the defendant, the injui-y would not haye happened. "'"' 
 Where the cause, concurring with the negligence of the defend- 
 ant, — as where there is a defect in the highway, — to produce injury 
 was a natural cause, or a pure accident, for which no person was 
 responsible, the one guilty of the negligence will be liable.' But 
 where the concurring cause is the independent, wrongful' act of a 
 responsible person, such act arrests causation, being regarded as the 
 proximate cause of the injury, the original negligence being con- 
 sidered merely as its remote cause. As, in the law, it is the prox- 
 imate and not the remote cause which is regarded, he Mdio is 
 guilty of tbe original negligence is not chargeable, but redress 
 must be sought from him who directly caused the injury. 
 
 In Rov^ell v. Lowell, 7 Gray, 100, in which the plaintiff, while 
 passing out of the post-office building, slipped from the steps, which 
 were outside the limits of the street and for the condition of \yhieh 
 the defendant was not responsible, to the sidewalk, and then con- 
 tinued slipping till she fell and was injured, both the steps and 
 sidewalk being so covered with ice as to be slippery and unsafe, 
 and having remained so more than twenty-four hours, the court 
 held the defendant not liable ; and in distinguishing the case from 
 
 ^Richmond & D. R. Co. v. Pickleseimer, 85 Va. 798; Buiterfield v. Forrester, 
 
 11 East, 60; Tvff v. Warman, 5 C. B. N. S. 573; Pennsylvania R. Co. 
 
 V. Asjiell, 23 Pa. 147; Peverly v. Bvston, 136 Mass. 366; Teire Uaute <t I. 
 
 R. Co. V. Graham., 95 Ind. 286. 
 "See Paducah & M. R. Co. v. HoeJil, 12 Bush (Ky.) 41; Kentnel-y Cent. R. Co. 
 
 V. Tliomas, 79 Ky. 160; Houston & T. C. R. Co. v. C/emmons, 55 Tex. 88; 
 
 Eickey v. Boston & L. R. Co. 14 Allen, 429; Colorado Cent. R. Co. v." 
 
 Holmes, 5 Colo. 197. 
 ^Hampson v. Taylor, 15 R. I. 83, 85, 1 New Eng. Rep. 117. 3 New Ene 
 
 Rep. 640. 
 ^Kidder v. Dunstable, 7 Gray, 104; Shepherd v. Chelsea, 4 Allen, 113; Empo- 
 
 na V. Schmidling, 33 Kan. 485; Mahogany v . Ward, 16 R. I. .
 
 366 IMPOSED DUTIES, PERSONAL. [Part 11^ 
 
 Palmer v. Andover, 2 Cush. 600, one of the cases supporting the- 
 rule applied in Hampson v. Taylor^ 15 R. I. 83, 1 New Eng. 
 Rep. 117, said: "AYe think the only exception to the rule that tlie 
 plaintiff cannot recover unless the defect in the highway was the 
 sole cause of the injury, must be one where the contributing cause 
 was a pure accident, and one which common prudence and sagac- 
 ity could not have foreseen and provided against." 
 
 In Kidder v. Dundahle, 1 Gray, 104, an action to recover dam- 
 ages for an injury from a defect in a highway, the court says : 
 " The alleged defect in the highway here was a neglect to remove- 
 the snow therefrom, and the injury is alleged to have been re- 
 ceived by the upsetting of the sleigh in which the plaintiff was 
 driving upon the road. It appears by the facts stated that the 
 plaintiff, while thus driving on the road, met one Coburn driving 
 a one-horse sled with stakes in the sides, and, as Coburn testifies, he 
 believes that, as he drove by, one of the stakes in his sled struck 
 the top of the back part of the sleigh and overturned it, he having 
 tui-ned to the right as far as he safely could on account of the 
 snow in the road. The defendant, however, contended that the 
 injury was caused wholly on his part by the carelessness or negli- 
 gence of Coburn, and asked the court to instruct the jury that if 
 such was the case the plaintiff could not recover, and this prayer 
 for instruction was refused. The case stated by the d jf endant 
 was one of injury resulting from the combined effect of two dis- 
 tinct causes, and one of these proceeding from a third person whO' 
 would be responsible for any injury he might unlawfully occasion. 
 The court are of the opinion that if this injury was caused 
 wholly by Coburn or was the combined result of the defect in the 
 highway and carelessness or negligence on the part of Coburn in 
 driving his vehicle, whereby the stakes on his sled struck the 
 sleigh of the plaintiff and overturned it, the defendants are not 
 chargeable therefor." So, too, in Shepherd v. Chelsea^ 4 Allen, 113, 
 where plaintiff sued for injury to plaintiff's wife by reason of a de- 
 fective highway, it was proved and admitted for the purposes of 
 the trial that boys had been in the habit of sliding on sleds, with- 
 out interruption, on the sidewalk which the defendants were bound 
 to keep in repair, and had made the snow and ice on it so slippery 
 as to be dangerous ; that while plaintiff's wife was walking on the-
 
 Chap. XVI.] CONTRIBUTOKY NEGLIGENCE IN ADMIKALTY. oG7 
 
 sidewalk on a dark night, a boy sliding ran upon her with his sled 
 and threw her down, whereby she received the injury complained 
 of ; that she did not see the boy or sled till struck, and by reason 
 of the slippery condition of the sidewalk could not have avoided 
 him. The court held, affirming the prior cases of Rowell v. 
 Lowell^ 7 Gray, 100, and Kidder v. Dunsiahle, 7 Gray, 104, that, 
 as it did not appear that plaintiff was injured by the alleged defect 
 in the way, but it was clear that the accident happened in part 
 from the unlawful or careless act of a third person, the action 
 could not be sustained. 
 
 In Mahogany v. Ward, 16 E.. I. , where B, driving on the 
 
 highway and meeting plaintiff, did not turn to the right of the 
 centre of the road as required by the statute, and the plaintiff was 
 in consequence compelled to drive upon the side of the road and 
 w^as injured by colliding with a post standing outside of and 
 close to the traveled carriage way. the wrongful act of B was 
 treated as the proximate cause of the injury, and the town was not 
 liable, the court holding that the negligence of a responsible agent 
 intervening between the defendant's negligence and the injury 
 suffered breaks the causal connection between the two ; but that, if 
 the intervening act or negligence is a natural or probable result of 
 the original negligence, the latter will be regarded as the pi-oxi- 
 mate cause of the injury.* The court said : " We do not think that 
 it can be reasonably held that the town ought to have anticipated, 
 as a probable result of permitting the post to remain by the side of 
 the road, that someone would be forced against it by the wrongful 
 and unlawful conduct of another in keeping the middle of the 
 traveled path instead of turning to the right of the centre of it, 
 as required by the statute." 
 
 In Farker v. Cohoes, 10 Hun, 531, affirmed, 74 N. Y. 610, the 
 water commissioners of the City of Cohoes, acting under authority 
 of law, made an excavation in one of the streets for the purpose 
 of laying water pipes for public and general use, and, in so doing, 
 caused the road to be torn up in laying the drain, and also brouglit 
 onto the street a heap of sand for use in the work ; at the end of 
 
 ^Lane v. Atlantic Worku, 111 Mass. 136, 139, 141; Origgs v. Fleckenstein, 14 
 Minn. 81; Clark v. Chambers, L. R. 3 Q. B. Div. 327; Burrows v. Coke 
 Co. L. R. 7 Excli. 96, 97; Dixon v. Bell, 5 Maule & S. 198. 199; lUidge v. 
 Goodwin, 5 Car. & P. 190, 192; Lynch v. Nurden, 5 Jiir. 797.
 
 368 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 tlie d:iy barriers of planks were placed on the sidewalk supported 
 by barrels in the street, to prevent vehicles from entering the 
 highway. Subsequently some person, without the authority or 
 knowledge of the commissioners, removed one of the barriers 
 and the plaintiff in the darkness drove through the opening 
 thus made, ran into the obstruction and M'as thrown from his 
 carriage and injured. It was held that the defendant was not 
 bound to anticipate the mischievous or wrongful acts on the part 
 of others, and hence was not bound to guard against them.' 
 
 f. In Admiralty Juj^is diction. 
 
 But though the negligence of the plaintiff has been such as to 
 have contributed, to some extent, as a proximate cause of the in- 
 jury, and would defeat the action at common law, yet if the case 
 is one of admiralty jurisdiction, it will not wholly bar a partial 
 recovery, provided the fault, though evident, is neither willful, nor 
 gross, nor inexcusable, and where there are circumstances present- 
 ing a strong case for relief. This rule of admiralty is applicable 
 to all cases of marine tort, founded upon negligence and prosecuted 
 in admiralty, as in harmony with the rule for the division of dam- 
 ages in cases of .collision. The mere fact of the negligence of the 
 libelant as partly occasioning the injuries to him, when they have 
 occurred partly through the negligence of the officers of the ves- 
 sel within admiralty jurisdiction, does not bar him entireh^ from 
 a recovery. But whether the recovery should be for exactly one 
 half of the damages sustained, or may, in the discretion of the 
 court, be for a greater or less proportion of such damages, is still, 
 perhaps, to some extent an open question. A longshoreman, em- 
 ployed to load coal on board a steamship, and injured while so 
 employed by falling from the steamer's bridge to her deck, partly 
 through his own negligence and partly through the negligence of 
 the steamer's officers, is entitled, in a suit in admiralty against the 
 vessel for damages for such injury, to a decree for some portion of 
 the damages." 
 
 'See also Doherty v. WaWiam, 4 Gray, 596; McGinity v. New York, 5 Duer, 
 
 674. 
 ^The Max Morris v. Curry, 137 U. S. 1, 34 L. ed. 586. See The Marianna 
 
 Flora, 24 U. S. 11 Wheat. 1, 54, 6 L. ed. 405, 417; The Palmyra, 25 U. 
 
 S. 12 Wheat. 1. 17, 6 L. ed. 531, 536.
 
 Chap. XYL] CONTKIBUTORY NEGLIGENCE IN ADMIRALTY. 309 
 
 The rule recognizing in admiralty an equal division of the loss 
 has been applied in numerous cases.' Some of the cases show 
 that this rule has been extended to the division of damages in 
 claims other than those for damages to the vessels M'hich were in 
 fault in a collision; ' also in cases where the vessel towed was held 
 to be in fault for not being in proper condition; ' and where a 
 boat was injured by striking the bottom of a slip in unloading at 
 the respondent's elevator, the boat herself being also in fault;* 
 and where the vessel towed was old and unseaworthy.* 
 
 In Snow V. Carruth, 1 Sprague, 324, in the United States Dis- 
 trict Court for the District of Massachusetts, damage to goods car- 
 ried by a vessel as freight was attributable partly to the fault of 
 the carrier and partly to the fault of the shipper, and, it being 
 impossible to ascertain for what proportion each was responsible, 
 the loss was divided equally between them; for the rule is, "a 
 rustic sort of determination and such as arbiters and amicable 
 compromisers of disputes commonly follow, where they cannot 
 discover the motives of the parties, or when they see faults on 
 both sides." " 
 
 Prior to the recent ruling in The Max Morris v. Curry ^ 137 
 
 ^Rogers v. TU St. Charles, GO U. S. 19 How. 108, 15 L. ed. 563; Chamher- 
 lain V. Ward, 62 U. S. 21 How. 548, 16 L. ed. 211; The Washimton, 76 U 
 S. 9 Wall. 513, 19 L. ed. 787; The Sapphire, 78 U. S. 11 WaH. 164 20 
 L. ed. 127; The Ariadne, 80 U. S. 13 Wall. 475, 20 L. ed. 542; The Con- 
 tinental, 81 U. S. 14 Wall. 345, 20 L. ed. 801; Atlee v. Northwestern U. 
 Packet Co. 88 U. S. 21 Wall. 389, 22 L. ed. 619; The Teutonia 90 U S 
 23 Wall. 77, 23 L. ed. 44; The Sunnyside, 91 U. S. 208, 23 L. ed 302- 
 The America. 92 U. S. 432, 23 L. ed. 724; The Alabama, 92 U. S. 695 23 
 L. ed. 763; The Atlas, 93 U. S. 302, 23 L. ed. 863; The Juniata, 93 u' S 
 337, 23 L. ed. 930; Tlie Stephen Morgan, 94 U. S. 599, 24 L. ed. 266; The 
 Virginia Ehrman, 97 U. S. 309, 24 L. ed. 890; The City of Hartford 97 
 U. S. 323, 24 L. ed. 930; The Civilta, 193 U. S. 699. 26 L. ed. 599; The 
 Connecticut, 103 U. S. 710, 26 L. ed. 467; The North Star, 106 U S 17 
 27 L. ed. 91; The Sterling, 106 U. S. 647, 27 L. ed. 98; The Manitoba 122 
 U. S. 97, 30 L. ed. 1095. 
 
 ^The Juniata, 93 U. S. 337, 23 L. ed. 930; The WaMngton, 76 U. S 9 Wall 
 513, 19 L. ed. 787; The Alabama, 92 U. S. 695, 23 L. ed. 763. See also] 
 in the United States district and circuit courts. Mason v. The William 
 Murtangh, 3 Fed. Rep. 404; The William Murtagh, 17 Fed. Rep. 260; 
 Williams v. The William Cox, 3 Fed. Rep. 645, alfirmed by the circuit 
 court; The William Cox, 9 Fed. Rep. 672; Connolly v. Ross, 11 Fed Rep 
 342; The Boi'dentown, 16 Fed. Rep. 270. 
 
 ^Philadelphia & R. R. Co. v. New England Transp. Co. 24 Fed. Rep. 505. 
 
 ^Christian v. Van Tassel, 12 Fed. Rep. 884. 
 
 ^TJie Syracuse, 18 Fed. Rep. 828; The Reba, 22 Fed. Rep. 546. 
 
 • Cleirac, Us et Coutumes de la Mer, p. 68. 
 24
 
 370 nirosED duties, personal. [Part II, 
 
 U. S. 1, 34 L. ed. 586, decided Nov. 17, 1890, the application of 
 the admiralty rule of a division of loss had been sometimes denied 
 in cases of personal injury to which the libelant contributed.*^ 
 The rule was applied to this class of injuries in other courts." 
 
 Section 38. — Kavigohle Waters ivithin the Juris- 
 diction of Admiralty. 
 
 The "navigable waters of the United States" are such as are 
 navigable in fact, and which, by themselves or their connection 
 with other waters, form a continuous channel for commerce with 
 foreign countries or among the States.' 
 
 In Ex parte Boyer, 109 U. S. 629, 27 L. ed. 1056, the waterway 
 upon which the collision occurred was actually the property of the 
 State of Illinois, and was wholly artificial, and was wholly within 
 its territorial boundaries. The court says, through Mr. Justice 
 Blatchford: " Within the principles laid down by this court in 
 the cases of The Daniel Ball, 77 U. S. 10 Wall. 557, 19 L. ed. 
 999, and The MonteUo, 87 U. S. 20 Wall. 430, 22 L. ed. 391, which 
 extended the salutary views of admiralty jurisdiction applied in 
 The Genesee Chiefs. Fitzhugh, 53 U. S. 12 How. 443, 13 L. ed. 
 1058 ; The Bine v. Trevor, 74 U. S. 4 Wall. 555, 18 L. ed. 451, 
 and The Eagle, 75 U. S. 8 Wall. 15, 19 L. ed. 365, we have no 
 doubt of the jurisdiction of the district court in this case." " Nav- 
 igable water, situated as this canal is, used for the purposes for 
 which it is used, a highway for commerce between ports and places 
 in different States, carried on by vessels such as those in question 
 here, is public water of the United States." 
 
 The Constitution confers not only admiralty, but all " maritime," 
 jurisdiction.* " Maritime " was added to guard against a narrow 
 
 ^Peterson v. The CMndos, 4 Fed. Rep. 649; Holmes v. Oregon & G. R. Co. 5 
 
 Fed. Rep. 523, 538; The ManMsset, 19 Fed. Rep. 430. 
 ^The Explorer, 20 Fed. Rep. 135; The Wanderer, Id. 140; The Truro, 31 
 
 Fed. Rep. 158; The Eddy stone, 38 Fed. Rep. 925. 
 miller V New York City, 109 U. S. 385, 395, 27 L. ed. 971, 975; The Mon- 
 
 tello 78 U S 11 Wall. 411, 20 L. ed. 191; Fulmer v. Williams, 123 Pa. 
 
 191 'l L R A. 603; The Daniel Ball, 77 U. S. 10 Wall. 563, 19 L. ed. 
 
 lOo'; Escanaba & L. 31. Transp. Co. v. Chicago, 107 U. S. 682, 27 L. ed. 444. 
 *I)e Lovio V. Boit, 2 Gall. 398. And see Davis v. The Seneca, Gilp. 28; The 
 
 Huntress, 3 Ware, 83; Kynoch v. The S. C. Ives, Newb. 205; Desty, Fed. 
 
 Const. 221.
 
 Chap. XYL] JURISDICTION of IsAVIGABLE WATEItS. 371 
 
 interpretation of the word " admiralty," ' The maritime law is a 
 part of the common law," and the term belongs to the law of na- 
 tions as w^ell as domestic and municipal law/ The grant was not 
 intended to be limited to cases of admiralty jurisdiction in England 
 when the Constitution was adopted/ The jurisdiction is entirely 
 distinct from the power of Congress to regulate commerce.' 
 
 The admiralty and maritime jurisdiction of the United States 
 granted by the Constitution extends to all navigable lakes and riv- 
 ers, where commerce is carried on between States, or with a for- 
 eign country.* The grant of admiralty jurisdiction does not 
 extend to a cession of the waters ceded to the several States, nor 
 to the general jurisdiction over the same.' The general juris- 
 diction over the places subject to this grant of admiralty jurisdic- 
 tion adheres to the territory as a portion of severeignty not vet 
 given away, and the residuary powers of legislation still remain in 
 the State.* The shores of navigable waters and the soil under 
 them between high and low water marks were not granted by the 
 Constitution to the United States, but were reserved to the States 
 respectively ; and the new States have the same rights and juris- 
 diction on this subject as the original States.* 
 
 Upon admission of a State into the Union it at once becomes 
 
 ^Fretz V. Bull, 53 U. S. 12 How. 466, 13 L. ed. 1068; The Eine v. Trevor 71 
 U. S. 4 Wall. 555, 561, 18 L. ed. 451, 453; The Moses Taylor, 71 U S 4 
 Wall. 411, 18 L. ed. 397. 
 
 '^Thompson v. I'he Catharina, 1 Pet. Adm. 104. 
 
 ^The Huntress, 2 Ware, 82. 
 
 *I^ew Jersey Steam Nav. Co. v. MerchanU Bank, 47 U. S. 6 How. 344, 12 L. 
 ed. 465; Waring v. Clarke, 46 U. S. 5 How. 441, 12 L. ed. 226; I)e Lotto 
 V. Boit, 2 Gall. 398; Davis v. The Seneca, Gilp. 10, 34; The Gold Hunter 
 Blatchf. & H. 300; Steele v. Thatcher, 1 Ware, 91; The Huntress, 2 Warel 
 82; Kynoch v. The 8. C. Ives, Newb. 205; The Volunteer, 1 Sumn. 551. 
 
 ^The Oenesee Chief v. Fitzhugh, 53 U. S. 12 How. 448, 18 L. ed. 1058- The 
 Belfast, 74 U. S. 7 Wall. 624, 19 L. ed. 266; The Sarah Jane, 1 Low. 203. 
 
 *T}ie Genesee Chief v. Fitzhugh, 53 U. S. 12 How. 443, 13 L. ed. 1058; Tlie 
 Hine v. Trevor, 71 U. S. 4 Wall. 561, 18 L. ed. 453. 
 
 ■> United States v. Bevans, 16 U. S. 3 Wheat. 336, 4 L. ed. 404; Smith v. Mary- 
 land, 59 U. S. 18 How. 71, 15 L. ed. 260; The Wave v. Hyer, 2 Paine, 131, 
 Blatchf. & H. 235; The Genesee Chief v. Fitzhugh, 53 U. S, 12 How 443. 
 13 L. ed. 1058. 
 
 'United States v. Bevans, 16 U. S. 3 Wheat. 336, 4 L. ed. 404. 
 
 ^Ooodtitle V. Kibbe, 50 U. S. 9 How. 471, 13 L. ed.220; Pollard v. Hagan, 44 
 U. S. 3 How. 212, 11 L. ed. 565; Mobile v. Eslava, 41 U. S. 16 Pet. 234 
 10 L. ed. 948; Mobile v, Hallett, 41 U. S. 16 Pet. 261, 10 L. ed. 958; Mobile 
 V. Emanuel, 42 U. S. 1 How. 95, 11 L. ed. 60; Doe v. Bcebe, 54 U. S. 13 
 How. 25, 14 L. ed. 35.
 
 372 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 entitled to and is possessed of all the rights of dominion and sov- 
 ereignty which belonged to the original States, and can there- 
 fore afterwards exercise the same powers over rivers within her 
 limits as Delaware exercised over Blackbird Creek, and Pennsyl- 
 vania over Schylkill River.' A concurrent jurisdiction of neces- 
 sity exists over w^aters of a navigable river forming the boundary 
 between two States.' The Savannah River is a public navi- 
 gable stream, and the voyages of a vessel and her cargo between 
 landings in Georgia and South Carolina are interstate in character, 
 and the jurisdiction of Congress is undoubted.^ So the Ohio is 
 one of the navigable rivers of the United States." 
 
 In this country, as a general thing, all waters are deemed navi- 
 gable which are really so; * and especially is it true with regard 
 to the Mississippi and its principal branches.* 
 
 The Ordinance of 1787 provided that the navigable waters 
 leading into the Mississippi and St. Lawrence, and the carrying 
 places between them, shall be common highways for canoes or 
 batteaux in the commerce between the northwestern wilderness 
 and the settled portions of the United States and foreign coun- 
 tries, and as to such rivers not then in use as would b}' law be de- 
 fined as navigable waters.' 
 
 If a river is navigable only between different places within the 
 State, then it is not a navigable water of the United States, but 
 only a navigable water of the State.* 
 
 ^Pollard V. Hagan, 44 U. S. 3 How. 212, 11 L. ed. 565; PermoU v. Munici- 
 
 pallty No. 1 of New Orleans, 44 U. S. 3 How. 589, 11 L. ed. 739; Strader 
 
 V Qrnham, 51 U. S. 10 How. 82, 13 L. ed. 337; Huse v. Gloier, 119 U. 
 
 S. 543, 30 L. ed. 487; Doe v. Beebe, 54 U. S. 13 How. 25, 14 L. ed. 35. 
 '^Aiteheson v. The Endless Chain Dredge, 40 Fed. Rep. 253. 
 ^Lawion v. Comer, 7 L. R. A. 55, 40 Fed. Rep. 480. 
 ^Neicport & G. Bridge Co. v. United States, 105 U. S. 470, 475, 26 L. ed. 
 
 1143, 1145; Cincinnati, P. B. 8. & P. Packet Co. v. Catlettsburg , 105 U. 
 
 S. 559, 26 L. ed. 1169. 
 ^Bucki V. Cone, 25 Fla. 1. 
 ^McManus v. Carmichael, 3 Iowa, 1; Haight v. Keokuk, 4: lo-w&, 199; Tomlin 
 
 V. Dubuque, B. & M. R. Co. 32 Iowa. 106; Barney v. Keokuk, 94 U. S. 
 
 336 24 L. ed. 227; Escanaba & L. M. Tramp. Co. v. Chicago, 107 U. S. 
 
 678, 27 L. ed. 442; The Montello, 87 U. S. 20 Wall. 430, 22 L. ed. 391. 
 ''Burroughs v. Whitwam, 59 Mich. 279. 
 ^Miller v. New York City, 109 U. S. 385, 27 L. ed. 971 ; The Montello, 78 U. 
 
 S. 11 Wall. 411, 20 L. ed. 191; Com. v. King, 150 Mass. 221, 5 L. R. A. 
 
 536.
 
 Chap. XVI.] NAVIGABLE "WATERS. TIDAL STKEAM8. 373 
 
 Section ^9.—j\^avigahl6 Waters.— Tidal Streams. 
 
 What are navigable waters, as exchulino: private ownersliip and 
 making tliem public highways, is also important as determining 
 the duties of riparian owners and of the public users. The term 
 " navigable waters," as commonly used in the law, has three dis. 
 tinct meanings : (1) as synonymous with "tide waters," being wa,- 
 ters, whether salt or fresh, Avhere the ebb and flow of the tide from 
 the sea is felt ; (2) as limited to tide waters which are capable of 
 being navigated for some useful purpose, or (3) as including all 
 waters, whetlicr within or beyond the flow of the tide, which can 
 be used for navigation. The last class is not recognized in Mas- 
 sachusetts, but is generally accepted by the state courts, as also by 
 the Supreme Court of the United States.' 
 
 Whether a stream was navigable or non-navigable, in England, 
 was generally determined, in the old cases, by whether the tide 
 ebbed or flowed in the stream ; and doubtless the tide does ebb 
 and flow very generally in the navigable streams of Great Britain; 
 but in the United States, in most of the navigable streams, the 
 tides do not ebb and flow. The common law is in constant 
 healthful growth with individual and national life. A remark- 
 able instance of the development of the law is seen in the doctrine 
 almost unanimously adopted by the courts in this counti-y, that a 
 river may be considered navigable although not affected by a flow 
 of the tides from the sea. Tlie common law was otherwise. 
 Lord Hale, the great publicist, knew no such doctrine. Leo-isla- 
 tion did not create it. The courts felt obliged to adopt the inter- 
 pretation, as a new application of an old rule, from an irresistible 
 puljlic necessity.'^ The great mass of the commerce of the 
 United States is transported on waters in which the tides do not 
 ebb and flow, and even when it is moved upon streams on which 
 the tide does ebb and flow, it is only for comparatively a short 
 space, while for nearly the whole distance it has been moved 
 from above the tide-water section of the country. Indeed, this 
 is the case in very many States of the Union that carry on a 
 large commerce in which there is no tide water. But in none of 
 
 ^Com. V. Vincent, 108 Mass. 441, 447. 
 
 ^Woodman v. Pitman, 79 Me. 45(3, 4 New Eng. Rep. 699; Lexington & R 
 Co. V. Aiyphfjate, 8 Dana, 289, 33 Am. Dec. 497, 513.
 
 374 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 these States has it been held that tliese are not navigable streams 
 simply because there was no ebb or flow of the tide. In the 
 United States some of the decisions recognize these somewhat dif- 
 ferently defined classes of navigable streams. Thus tidal streams 
 are held prima facie navigable in law,' but this test has no 
 apjjlication to the waters of North Carolina, where the test is 
 whether or not the water is navigable for sea vessels.* And in 
 none of the courts is every small cr6ek in which a fishing skiff or 
 gunning canoe can be made to float at high tide deemed subject 
 to public use; but in order to have a public character, it must be 
 navigable for some purpose useful to business or pleasure.^ So 
 in many small creeks into which the sea water flows, but which are 
 incapable of being navigated, private property may be maintained.'' 
 This is true although they are navigable at exceptional and extraor- 
 dinary tides.^ For the mere presence of the tide does not in 
 itself alone prevent a creek being private estate.' Therefore the 
 ebb and flow of the tide as a matter of fact is not inconsistent with 
 a right of private pi-oj)erty in a creek, although prima facie evi- 
 dence against such right.' And it may be stated as the settled 
 law in this country that public right is limited to those streams 
 and inlets which are capable of public use.* 
 
 Waston V. Mace, 33 W. Va. 14, 5 L. R. A. 393; Sullivan v. Spotmood, 82 
 
 Ala. 163; Bucki v. Cone, 25 Fla. 1; Hodges v. Williams, 95 N. C. 331. 
 * Hodges v. Williams, 95 N. C. 331. 
 *Com. V. Breed, 4 Pick. 460; Murdoch v. Stickney, 8 Cush. 113. 115; West 
 
 Roxbury v. Stoddard, 7 Allen, 158, 171 ; United States v. The Montello, 87 
 
 U. S. 20 Wall. 442, 543, 22 L. ed. 394; Getty v. Hudson River R. Co. 21 
 
 Barb. 617; Gould, Waters, 199. 
 *Com. V. Charlesiown, 1 Pick. 186. See Miles v. Rose, 5 Taunt. 706; Vooght 
 
 V. Winch, 2 Barn. & Aid. 662. 
 ^Rowe V. Oranite Bridge Corp. 21 Pick. 344; Atty-Oen. v. Woods, 108 Mass. 
 
 436. 
 ^Lynn v. Turner, Cowp. 86, Lofft, 556. 
 "^Miles V. Rose, 5 Taunt. 706. 
 ^The Montello, 87 U. S. 20 W^all. 442, 22 L. ed. 394; UniUd States v. NewBed- 
 
 fm-d Bridge, 1 Woodb. & M. 487; Wethersfield v. Humphrey, 20 Conn. 218; 
 
 Groton v." Hurlburt, 22 Conn. 178; Burrows v. Gallup, 32 Conn. 501; 
 
 Brown v. Preston, 38 Conn. 219; Charlestown v. Middlesex County, 3 Met. 
 
 202; Glover v. Powell, 10 N. J. Eq. 211; Flanagan v. Philadelphia, 42 Pa. 
 
 219.
 
 \ 
 
 CHAPTER XYII. 
 
 TITLE TO AND LIABILITY FOR OBSTRUCTIONS IN WATERS. 
 
 Sec. 40. Non-Tidal Navigalle Rivers. 
 
 Sec. 41. Title of the National or State Government in the Sea 
 
 Shore and in the Banks and Beds of Tidal Streams. — Title of 
 
 Riparian Owner. 
 
 Section ^O.—Mon- Tidal Jfavigahle Rivers. 
 
 With reference to the second of these classes of navii>:able 
 streams, it will be observed from its definition that whether fresli- 
 water streams be or be not navigable is a question of fact, and, as 
 such, those who claim such non-tidal streams to be navigable have 
 oil them the burden of proving that such streams are in fact navi- 
 gable for boats or lighters, and susceptible of valuable use for 
 commercial purposes in the natural state, unaided by artificial 
 means or devices.' A state court will take judicial notice of the 
 fact that the whole of a river within a State is above tlie ebb and 
 flow of tides, and of the navigability of certain waters.^ 
 
 A text writer has stated the rule vaguely, thus : "As the 
 right of navigation extends to all waters which have a natural ca- 
 pacity for such use, there is a general presumption of an ease- 
 ment." ^ This is true only as to waters of such natural capacity. 
 
 In regard to non-tidal waters it may be said that a fi-esh-water 
 stream, above tide-water, is navigable and a public highway only 
 when it is susceptible of being used, in ordinary condition, for a 
 highway of commerce, over which there may be trade, travel, 
 transportation or valuable floatage.* 
 
 In this country all rivers are regarded as navigable as far up as 
 they may be conveniently used at all seasons of the year for the 
 purposes of commerce, and also when declared by statute to be 
 
 ^Morrison v. Coleman, 87 Ala. 655, 5 L. R. A. 384. 
 
 ^Olive V. State, 86 Ala. 88, 4 L. R. A. 33; Mossman v. Forrest, 27 Ind. 233; 
 Neaderliouser v. Slate, 28 Ind. 257; Ross v. Faust, 54 Ind. 471; Bittle v.' 
 Stuart, 84 Ark. 224; T/iojiipson v. Androscoggin B. Imp. Co. 54 N. H. 
 545; Wfiitney v. Gauche, 11 La. Ann. 442. 
 
 *Phear, Rights of Water, 15, 7iote. 
 
 -^Morrison v. Coleman, 87 Ala. 655, 5 L, R. A. 384; Martin v Bliss 5 
 Blackf. 35.
 
 376 IMPOSED DUTIES, PERSONAL. [Part 11. 
 
 navigable ; but, further than this, what constitutes a navigable 
 stream, so far as to make it a public highway, is a question of 
 fact to be determined by the natural conditions in each case/ But 
 the stream, in order to belong to this second class of navigable 
 streams, must be thus capable of being navigated, not necessarily 
 at all times, but for such length of time during the year as will 
 make such stream valuable to the public as a public highway. But 
 the fact that the stream cannot be so used at certain seasons of the 
 year will not destroy the public right of navigation or make such 
 stream non-navigable.^ 
 
 To be a navigable river it must be generally navigable to 
 some purpose useful to trade or agriculture.' There must be 
 some commerce and navigation upon it which is essentially valua- 
 ble.* The capability of use by the public for the purposes of com- 
 merce is the true criterion of the navigability of a river, no matter 
 in what mode the commerce may be conducted and notwithstand- 
 ing navigation may be encompassed with difficulties through nat- 
 ural barriers.^ When a river is capable of navigation in different 
 parts of its course, but by reason of rocks, sand-bars and other 
 obstructions does not admit of continuous navigation, the public 
 may pass and repass in those parts of the river which are naviga- 
 ble." If the navigation of a river naturally navigable be im- 
 
 ^Bucki V. Cone, 25 Fla. 1. 
 
 ^Gaston v. Mace, 33 W. Va. 14, 5 L. R. A. 393. See McManus v. Cnr- 
 michael, 3 Iowa, 1; Rhodes v. Otis, 33 Ala. 578; Morgan v. King, 35 N.Y. 
 459; Berry v. Carle, 3 Me. 269; Wadsicortli v. Smith, 11 Me. 278; People 
 V. Tibhetts, 19 N. Y. 523; Reynolds v. McArthur, 27 U. S. 2 Pet. 417, 7L. 
 ed. 470; Wood, Nuis. § 587. 
 
 ^Roire V. Granite Bridge Corp. 21 Pick. 344. 
 
 * Woodman v. Pitman, 79 Me. 456, 4 New Eng. Rep. 702. 
 
 ^Doty V. Strong, 1 Pin. (Wis.) 316; Moore v. Sanborne, 2 Mich. 519; Brownv. 
 Chadbourne, 31 Me. 9; People v. Cannl Appraisers, 33 N. Y. 461; Morgan 
 V. King, 35 N. Y. 459; Flanagan v. Philadelphia, 42 Pa. 219; Monongahe- 
 la Bridge Co. v. Kirk, 46 Pa. 112; Cox v. State, 3 Blackf. 193; Hogg v. 
 Zanesville Canal & Mfg. Co. 5 Oliio, 410; Hickok v. Hine, 23 Oliio St. 527; 
 Jolly V. Terre Haute DraWrBridge Co. 6 McLean, 237; Illinois River Packet 
 Co. V. Peoria Bridge Asso. 38 111. 407; UarringtoJi v. Edwards, 17 Wis. 586. 
 
 ^The Daniel Ball, 77 U. S. 10 Wall. 557, 19 L. ed. 999; Spooner v. McCon- 
 nell, 1 McLean, 337, 350; Jolly v. I'erre Haute Draw-Bridge Co. 6 Mc- 
 Lean, 237; People v. Canal Appraisers, 33 N. Y. 461; Morgan v. King, 35 
 N. Y. 459; Flanagan v. PMladelphia, 42 Pa. 219; Monongahela Bridge Co. 
 V. Kirk, 46 Pa. 112; Coxv. Slate, 3 Blackf. 193; Hogg v. Zanesville Canal 
 & Mfg. Co. 5 Ohio, 410; Illinois River Packet Co. v. Peoria Bridge Asso. 38 
 111. 467; Harrington v. Edwards, 17 Wis. 586; Brown v. Chadbourne, 31 
 Me. 9, 23, 25; Gould, Waters, 199. See Tlie City of Salem, 37 Fed. 
 Rep. 846, 2 L. R. A. 380.
 
 Cliap. XVII.] TITLE IN SEA SHORE, ETC. 377 
 
 proved by the riparian owner, the public have a riglit to use it in 
 its improved condition for the purposes to which it is suited as 
 improved.' But if the stream was originally non-navigable, the 
 public right to its use in its improved condition does not attach.' 
 The public has a right of passage over all fresh-water streams 
 which are by nature susceptible of general use ; and those rivers 
 are public and navigable in law which are navigable in fact.' The 
 criterion of navigability is the use to which the stream may be put.* 
 
 Section 4:1.— Title of the JSfatiojial or State Govern- 
 ment in the Sea Shore and in the Banks 
 and Beds of Tidal Streams.— Title of Riparian 
 Owner. 
 
 "With reference to the first of these classes, tidal streams, wher- 
 ever the common-law prevails, are held to be navigable. Ey the 
 old English cases it is decided that all tidal waters are navigable to 
 the extent of the flow and reflow of the tide ; and that the abso- 
 lute property interest in the same, in the course, and the right of 
 
 » ^Wadmorth v. Smith, 11 Me. 278; Toot/taker v. Winslow, 61 Me. 123; IIol- 
 den V. Robinson Mfg. Go. 65 Me. 215; Cates v. Wadlington, 1 McCord L 
 580; Volk v. Eldred, 23 Wis. 410. 
 
 •Hale, De Jure Maris, chaps. 2, 3; Williams v. Wihxc, 8 Ad. & El 314 
 333; Bo.rr>ey v. Eeokuk, 94 U. S, 342, 24 L. ed. 224; Pound v. Ttirck 95 
 U. S. 4.59, 24 L. ed. 525; The Daniel Ball, 77 U. S. 10 Wall. 557 19 L 'ed 
 999; The Montello, 78 U. S. 11 AVall. 411. 20 L. ed. 191; Carter v. Thurs- 
 ton, 58 N. H. 108; Broxon v. Chadbourne, 31 ^le. 9; Moor v. Veazie 32 
 Me. 343; Springs. Russell, 7 Me. 273, 290; Wadsworth v. Smith, 11 Me. 
 278; Thompson v. Androscoggin R. Imp. Co. 54 N. H. 545, 58 N. H. 108; 
 Adams v. Pease, 2 Conn. 481; Ingraham v. Wilkinson, 4 Pick. 268; Corn. 
 V. Chapin, 5 Pick. 199; Avery v. Fox. 1 Abb. U. S. 246, Palmer v. MuUi 
 gan, 3 Gaines, 307; People v. Piatt, 17 Jolins. 195, 211; Hooker v. Cum- 
 mings, 20 Johns. 90; Canal Comrs. v. People, 5 Wend. 423; Morgan v 
 King, 35 N. Y. 454, 30 Barb. 9, 18 Barb. 277; Munson v. Uungerford 6 
 Barb. 265; Rowe v. Titus, 1 Allen (N. B.) 326; Esson v. McMaster, 1 
 Kerr (N. B.) 501; Boissonnault v. Oliv, Stuart (Low. Can.) 565; Moore 'v. 
 Sanborne, 2 Mich. 519; Lorman v. Benson, 8 Mich. 18; Rhodes v. Otis Z'i 
 Ala. 578, 596; Cox v. State, 3 Blackf. 193; Weise v. Smith, 3 Or. 445, 448; 
 Healy v. Chicago & J. R. Co. 2 111. App. 435; Pe>^le v. St. Louis, 10 111.' 
 351; Godfrey v. Alton, 12 111. 29; Memphix v. Overton, 3 Yerg. 389; Elder 
 V. Burrus, 6 Humph. 358; Stuart v. Clark, 2 Swan, 15; Siqler v. State, 7 
 Baxt. 493; Tales v. Judd, 18 Wis. 118; Hickok v. lline, 23 Ohio St 523- 
 Selman v. Wolfe, 27 Tex. 68; Gould, Waters, p. 115. 
 
 ^The Montello, 87 U. S. 20 Wall. 430, 22 L. ed. 391; Rhodes v. Otis, 33 Ala. 
 578; Wadmcorth v. S7nith, 11 Me. 278; lyeat v. Lord, 42 Me. 552; Moore 
 V. Sanborne, 2 Mich. 519; Thunder Bay River Booming Co. v. Speedily 31 
 Mich. 336; Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 583.
 
 378 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 €oil of owners of such land bounded by such tide-water streams, 
 extends only to high- water mark. 
 
 Title to land under water, and to the shore below ordinary high- 
 water mark, in navigable rivers and arms of the sea, was, by com- 
 mon law, vested in the Sovereign.' The rule applies to lands 
 bounded by the sea or by bays. The boundarj^ line is the high- 
 water mark and the shore or beach is the property of tlie State.* 
 In determining the exact location of the low or high water mark 
 reference is had to the ordinary or medium rise and fall of the 
 water.' Ordinarily, where the tide ebbs and flows, the title to the 
 bed of the stream is in the State." 
 
 High-water mark, or the dividing line between the proprietors 
 of lands bordering on a navigable stream and the State, is the point 
 be,yond which the presence and action of water are so common and 
 usual and so long continued in all ordinary years as to mark upon 
 the soil a character distinct from that of the banks in respect to 
 vegetation, as well as in respect to the soil itself.'' At common 
 law, the shore of the sea is the space between high and low water 
 mark." The words " beach," " strand," " flats," are often held 
 synonymous with shore.'' The shore below ordinary, but not ex- 
 
 ^Barney v. Keokuk, 94 U. S. 324, 34 L. ed. 224; Smith r. Maryland, 59 U 
 S. 18 How. 71, 15 L. ed. 269. 
 
 ^ Hodge v. Boothby, 48 Me. 71; Mather v. Chapman, 40 Conn. 382; Dana v. 
 Jackson Street Wharf Co. Zl Cal. 120; Slorer v. Fieeynan, 6 Mass. 435; 
 Com. V. Roxbury, 9 Gray, 492; Nilesv. Patch, 13 Gray, 254; Ledyard\. 
 Ten Exick, 36 Barb. 125; CorteJyou v. Van Bnindt, 2 Johns. 362; Goodtitle 
 V. Kibhe, 50 U. S. 9 How. 471,^13 L. ed. 220; Pollard v. Hagan, 44 U. S. 
 3 How. 212, 11 L. ed. 565. 
 
 *Com. V. Roxbury, 9 Gray, 451; Teschemacher v. Thompson, 18 Cal. 21; Mar- 
 tina. O'Brien, 34 Miss. 21; Stover v. Jack, 60 Pa. 339; Tinicum, Fishing 
 Co. V. CarUr, 61 Pa. 21; Wood v. .4i^;;aZ, 63 Pa. 221; Com. v. Alger, 7 
 Cush. 63. 
 
 *Com V. Chapin, 5 Pick. 199; Keyport & M. P. Steamboat Co. v. Farmers 
 Tramp. Co. 18 N. J. Eq. 13; Cobb v. Davenport, 32 N. ,J. L. 369; People 
 V. Tibbetts. 19 N. Y. 523; Smith v. Levinus, 8 N. Y. 472; Flanagan v. 
 Philadelphia, 42 Pa. 219; The Magnolia v. Mars?iall,39 Miss. 109. 
 
 *St. iMuis, I. M. & S. R. Co. V. Ramsey (Ark. May 24, 1«90) 8 L. R. A. 559. 
 
 ^Martin v. O'Brien, 34 Miss. 21; Cutts v. Hussey, 15 Me. 237; Galveston v. 
 Menard, 23 Tex. 349 ; Storer v. Freeman, 6 Mass. 439 : Teschemacher v. 
 Ihompson, 18 Cal. 21; Qough v. Bell, 22 N. J. L. 441; Atty-Oen. v. Cham,- 
 bers 27 Eng. L. & Eq. 242, 4 DeG. M. & G. 206; United States v. 
 Paclieco, 69 U. S. 2 Wall. 587, 17 L. ed. 865. 
 
 ^East Hampton v. Kirk, 6 Hun, 257; Cutts v. Hussey, 15 Me. 237; Littlefield 
 Y. Littlefield, 28 Me. 180; Doane v. Willcutt, 5 Gray, 328; Hodge v. Boothby, 
 48 Me. 71; Mies v. Patch, 13 Gray, 254; Dana v. Jackson Street Wharf 
 Co. 31 Cal. 120; Doe v. Beebe, 54 U. S. 13 How. 25, 14 L. ed. 85; Merwin 
 V. Wheeler, 41 Conn. 14.
 
 I 
 
 Chap. XVII.] TITLE IN SEA SHORE, ETC. 379 
 
 traordinary, hi<,^h-water mark, belongs to the public ; to the Crown 
 in England; in this country to the State.' Congress cannot grant 
 lands below low-water mark on navigable water in a State." The 
 banks and shores of navigable waters, whether sea, lake or river, 
 in any of the States, belong cither to the State, or to individuals, 
 as the case may be, and not to the United States.* 
 
 When the Kevolution took place the people of each State be- 
 came themselves sovereign, and in that character held the absolute 
 right to all their navigable waters and the soil under them, for 
 their own common use, subject only to the rights since surrendered 
 by the Constitution to the general government.* The shores of 
 navigable waters, and the soils under them, were not granted by 
 the Constitution to the United States, but were reserved to the 
 States respectively.* The right and title to the lake shore of the 
 great lakes is in the several States, not in the United States.* 
 
 The title to the soil under tide-water is in the State ; and even 
 the establishment of a harbor line does not transfer the fee to the 
 riparian owner, but only operates as a license to him to fill out and 
 incorporate the flats with the upland.' Soil below high-water 
 mark belongs to the State. The State may forbid all such acts as 
 would destroy or injure the public right of fishery on such soil.* 
 The power to regulate the fisheries was never surrendered by the 
 grant of admiralty and maritime jurisdiction.' A State can grant 
 to its own citizens the exclusive use of lands covered by water, for 
 raising oysters, and may prohibit, under a penalty, their use for 
 such purpose by citizens of other States,'" 
 
 ^Brookhaven v. Strong, 60 N. Y. 56; Martin v. Waddell, 41 U. S. 16 Pet. 367, 
 10 L. ed. 997; Com. v. Oharlestown, 1 Pick. 180; Cortelyou v.Van Brundt, 
 2 Johns. 362; Ang. Tide Waters, 20 etseq.; State v. Jersey City, 25 N. J. 
 L. 525; Bell v. Cough, 23 N. J. L. 624; United States v. Pachecv, 69 U. S. 
 2 Wall. 587, 17 L. ed. 865. 
 
 'Mobile V. Emanuel, 42 U. S. 1 How. 97, 11 L. ed. 60; Doe v. Beebe, 54 U. 
 S. 13 How. 25, 14 L. ed. 35. 
 
 37 Ops. Atty-Gen. 314; Doe v. Beebe, 54 U. S. 13 How. 25, 14 L. ed. 35, 
 
 ^Martin v. Waddell, 41 U. S. 16 Pet. 367, 10 L. ed. 997. 
 
 ^Pollard V. Uagan. 44 U. S. 3 How. 212, 11 L. ed. 505. 
 
 «6 Ops. Atty-Gen. 172; Doe v. Beebe, 54 U. S. 13 How'. 35, 14 L. ed. 35. 
 
 ''Gerhard v. Seekonk River Bridge Comrs. 15 R. I. 334, 2 New Eng. Rep. 619. 
 
 ^Smith V. Maryland. 59 U. S. 18 How. 71, 15 L. ed. 269; McCready v. Vir- 
 ginia, 94 U. S. 391, 24 L. ed. 248. 
 
 ^Smith V. Maryland, 59 U. S. 18 How. 71. 15 L. ed. 269; Bennett v. Boggs, 
 Baldw. 60; Corfidd v. Coryell, 4 Wash. C. C. 371. 
 
 ^oMcCready v. Virginia, 94 U. S. 391, 24 L. ed. 248.
 
 380 IMPOSED DUTIES, PERSONAL. [Pai't II. 
 
 When by Act of Congress a pier or breakwater is constructed 
 for the improvement of a harbor, no right to the land on which it 
 is constructed accrues to the United States by that fact alone, and 
 without purchase and cession from the State.' 
 
 A grantee of the State of Maryland, of land lying under low 
 water in Chesapeake Bay, cannot recover from the United States- 
 for use and occupation, because of a lighthouse built thereon, as,^ 
 by the constitutional concession to Congress of the power to regu- 
 late commerce between the States, the State of Maryland gave up 
 to the federal government necessary use of the waters and land 
 thereunder for that purpose, and the power to regulate commerce 
 includes the power to build lighthouses for its protection." 
 
 The title to lands boi-dering on navigable streams, under title 
 derived from the United States, stops at the stream, and all such 
 streams remain public highways.^ 
 
 On the admission of a new State into the Union, the " shore "^ 
 or tide lands therein, not disposed of by the United States prior 
 thereto, become the property of the State." 
 
 One of the properties of arms of the sea is not to be the subject 
 of private ownership below high-water mark.* But ;in Massachu- 
 setts by statute the common law has been changed, and now ripa- 
 rian owners hold to low-water mark on navigable rivers and 
 arms of the sea.* 
 
 In the Massachusetts Colonial Ordinance of 1647, which declares 
 that in all places about and upon salt water, where the sea ebba 
 and flows, the proprietor of the land adjoining shall have property 
 " to the low-water mark," the words " to the low-water mark " 
 mean to the extreme low-water mark,' This ordinance, which 
 
 '7 Ops. Atty.-Gen. 314. But see Stockton v. Baltimore d If. 7. R. Co. 33 
 
 Fed. Rep. 9. 
 '^nni V. United States, 39 Fed. Eep. 172. 
 
 ^St. Paul db P. B. Go. v. Sclmrmeier, 74 U. S. 7 Wall. 272, 19 L. ed. 74. 
 ^Case V. Loftus, 39 Fed. Rep. 730, 5 L. R. A. 684. 
 ^NaqleY. Innersoll, 7 Pa. 185; Carson v. Blazer, 2 Binn. 475; Shrtink v. 
 
 SclmylMl Nav. Co. 14 Serg. & R. 71-74; Bird v. Smith, 8 Watt.s, 434; 
 
 Union Canal Co. v. Landis. 9 Watt.=, 228; Wilson v. Forbes, 2 Dev. L. 
 
 30-36; Elder v. Burrus, 6 Humph. 358; McMarms v. Garmichael, 3 Iowa, 
 
 1; Raight v. Keokuk, 4 Iowa, 199; Bullock v. Wilson, 2 Port. (Ala.) 436. 
 ^Boston V. Richardson, 105 Mass. 358; Paine v. Woods, 108 Mass. 168; Valentine 
 
 V. Piper, 22 Pick. 85; Boston v. Lecraw, 58 U. S. 17 How. 426, 15 L. ed. 118. 
 ''Sewall & D. Cordage Co. v. Boston Water-Power Co. 147 Mass. 61, 6 New 
 
 Ene. Rep. 325; Sparhawk v. Bullard, 1 Neb. 95; AttyOen. v. Boston 
 
 Wharf Co. 12 Gray. 553; Wonson v. Wonson, 14 Allen, 71; Atty-Gen. v. 
 
 Woods, lOS Mass. 436.
 
 Chap. XYII.] TITLE IN SEA SHORE, ETC. 381 
 
 gave to the proprietor of the upland property in the shore between 
 high and low water mark, secured to such proprietor, not merely 
 an easement, but a property, to the land in fee, with power to re- 
 •claim it by building wharves so as to exclude navigation, provided 
 he did not cut off his neighbors' access to their houses or lands- 
 Nor has the owner of lands not accessible by navigation from the 
 fea cause of complaint because of being deprived, by the erection 
 of wharves or by the filling up of flats, of the ebb and flow of the 
 tide to his premises or the right therebj' to drain over the lands of 
 •others. Nor has an owner of land situated in the vicinity of tide- 
 water the right to have the water flow over the premises of others 
 owning flats or the shore between high and low water mark to his 
 own land.' 
 
 The Colony Ordinance of 1647 provides that the proprietors 
 shall not, by the liberty given them to fill up the flats, have power 
 to stop or hinder the passage of boats or other vessels in or through 
 any sea, creeks or coves, to other men's houses or lands ; and it 
 is within the autliority of the Legislature, for the benefit and se- 
 curity of public navigable waters, to regulate the building of struc- 
 tures under navigable waters, wherever the tide ebbs and flows.' 
 
 In Davidson v. Boston dh M. R. Co.^ 3 Cush. 91-105, the pe- 
 titioners were the owners of tide mills across whose flats the re- 
 spondents had been authorized to construct a railroad. It was 
 contended that they had a right to have these flats kept open, and 
 to the free and unobstructed flow and reflow of water over them, 
 so that when deprived thereof by the construction of the railroad 
 they would be entitled to damages therefor. It was held that the 
 owners of tide mills had no right, either against the public or as 
 against conterminous or adjacent propi-ietors, to have their flats 
 kept open for the use of their mills, but only to the flow of water 
 in the channel below low-water mark, and where the tide does not 
 obb. "The adjoining proprietor," it is there said, "to the extent 
 of one hundred rods, may build solid structures and thus obstruct 
 the flow and reflow of the tide, without objection, provided he 
 does not wholly cut off his neighbor's access to his house or land : 
 
 ^Henry v. Newburyport, 149 Mass. 582, 5 L. R. A. 179. 
 
 «Anc. Charier, 148, 149. 
 
 "Com. V. Alger, 7 Cush. 53; Atty-Oen. v. Woods, 108 Mass. 436.
 
 382 IMPOSED DUTIES, PERSONAL. [Part IL 
 
 and if the mill-owner or conterminous proprietor suffers in conse- 
 quence, it is damnum absque wjuria.^^ But the grantee of land 
 boundins: on navig-able waters, where the tide ebbs and flows, ac- 
 quires a legal right and a vested interest in the soil of the shore 
 between high and low water mark, and not a mere indulgence or 
 o-ratuitous license, given without consideration, and revocable at 
 the pleasure of the grantor.' But the right of the littoral pro- 
 prietors under the Ordinance of 1641, § 3, has always been subject 
 to this rule: that until he should build upon his flats or inclose 
 them, and wdiilst they are covered with the sea, all other persons 
 have the right to use them for the ordinary purpose of navigation. 
 So long as the owner of the flats permits the sea to flow over 
 them, the individual right of property in the soil beneath does not 
 restrain or abridge the public right.' He may build upon and 
 inclose it. But while covered with the sea, the public have the 
 right to use it for the purpose of navigation." The owner, in 
 such a case, has a right to reclaim such land by wharfing out or 
 making erections thereon beneficial to himself.* Damage to an- 
 other from such reclamation is damnum absque injuria.'' Pub- 
 lic rio-ht of navigation over land between high and low water 
 mark, where the soil belongs to the adjoining proprietor, is de- 
 feasible." 
 
 Persons owning the whole of the soil constituting the bed 
 and banks of a stream are entitled to the whole rights and 
 profits of the water opposite their land, whether the water is used 
 as a power to operate mills and machinery, or as a fishery, subject 
 to the implied condition that they shall so use their own right as 
 not to injure concomitant rights of another riparian owner, 
 and to such regulations as the Legislature of the State shall pre- 
 scribe.'' "Where such a proprietor owns the land on one side 
 only of the stream, his right extends only to the middle thread 
 of the stream, as at common law.' In constructing and repairing 
 a highway, the public has the rights of a land owner as regards- 
 
 1 See Austin v. Carter, 1 Mass. 231; Com. v. Alger, 7 Cush. 71; Boston v. Le- 
 
 crato, 58 U. S. 17 How. 431, 15 L. ed. 121. 
 ^Com. V. Al(/er, 7 Cash. 75; Boston v. Leeniw, 58 U. S. 17 How. 431, 15 L.. 
 
 ed. 121. 
 a 4 5 ^Boston v. Lecrmo, 58 U. S. 17 How. 426, 15 L. ed. 118. 
 ' molyoke Water-Power Co. v. Lyman, 82 U. S. 15 Wall. 500, 21 L. ed. 133.
 
 Chap. XVII.] TITLE IN SEA SHORE, ETC. 38S 
 
 watercourses witliin the highway limits.' Where the defendant, he- 
 ing the owner of the soil, laid out a street on his land between liigh 
 and low water mark, the right to use it became appurtenant to the 
 land of the adjoiners ; and anything which obstructs such right is 
 a nuisance." 
 
 The great ponds (ponds of more than twenty acres area) in the 
 State of Massachusetts are owned by the State, as public property 
 held in trust for public uses. The rights of proprietors owning 
 land either on a great pond or any stream flowing from it are sub- 
 ordinate to the paramount rights of the public declared by the 
 Colony Ordinance of 1041-47, and are not regulated b}^ the com- 
 mon law. Each grant from the State, of land upon a great pond 
 or any stream flowing therefrom, carries with it an implied reser- 
 vation of the paramount rights of the public, unless the terms of 
 grant exclude such reservation.^ And in Maine, rivers are public 
 highways, and, under the ordinance, if they be navigable rivers, — 
 that is, M-ithin the ebb and flow of the tide, — then the riparian 
 owner holds to low-water mark ; and if the holding is upon a bay 
 or place where the tide ebbs more than 100 rods, then to low-water 
 mark, not exceeding 100 rods.* The title to an island within one 
 hundred rods from the upland does not extend to flats between 
 the island and the mainland when the channel is dry at low water, 
 unless by special grant. It is otherwise as to the flats between the 
 island and receded sea.* Sand heaps and bars may or may not be 
 islands." An isolated sand bank alternately covered and exposed 
 by tides, situated within one mile from the Oregon shore, in the 
 Columbia River, and entirely disconnected from the maiidands, is 
 not tide land, within the meaning of that term.' Elevations of a 
 mussel bed have been declared not to be islands.* 
 
 In Connecticut the owner of land on navigable water has an ex- 
 clusive right to the soil between high and low water mark for the 
 purpose of erecting wharves and stores thereon. An invasion of 
 
 ^Nealley v. Bradford, 145 Mass. 561, 5 New Eng. Rep. 515. 
 ^Richardson v. Boston, 60 U. S. 19 How. 263, 15 L. ed. 639. 
 ^Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 1 L. R. A. 4G6. 
 *UnitM States v. Pacheco, 69 U. S. 2 Wall. 587, 17 L. ed. 865; Stratton v. 
 
 Currier, 81 Me. 497, 3 L. R. A. 809; Sale v. Piatt, 19 Pick. 191. 
 » ^Bahson v. Tainter, 79 Me. 368, 4 New Eng. Rep. 661. 
 ''Elliott V. Stewart, 15 Or. 259. 
 »Babson v. Tainter, 78 Me. 368, 4 New Eng. Rep. 661.
 
 384 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 the owner's right to soil between high and low water mark, and 
 his consequent dispossession, is trespass to real estate and disseisin, 
 the same as though it were upland. The mud flats on a seashore, 
 between high and low water mark, may be used for any purpose 
 which does not interfere with navigation, and the title to the up- 
 land bordering on a seashore, and the appurtenant rights in the 
 shore and the mud flats between high and low water mark, are 
 separable, and either may be conveyed without the other.' 
 
 In Delaware a riparian proprietor of land fronting upon a navi- 
 irable stream holds to low-water mark." 
 
 In New Jersey, under the Eiparian Laws, lands below the high- 
 water mark of navigable waters belong to the State.' The State 
 may either sell or convey its title to a riparian owner or his assigns, 
 or to a stranger, who, succeeding to its title, has no relation to the 
 adjacent riparian owner except that of common boundary," 
 The title under the New Jersey grants is not only of a new es- 
 tate, but is a new subject divided from the upper or riparian 
 property by a fixed and permanent boundary. Such grants are 
 of the estate in the land, and not of a mere franchise or incor- 
 poreal hereditament.^ 
 
 All navigable waters within New Jersey, together with the soil 
 under them, belong in actual proprietorship to the State. A per- 
 son acquiring title to land abutting on a navigable stream takes 
 title only to the high-water line, and that line is limited by the 
 outflow of the medium high-tide between the spring and neap 
 tides. All below that line belongs to the State, and the State may, 
 at any time before it is reclaimed by the owner of the adjacent 
 upland, grant it, for a public use, to w^homsoever it sees fit. A 
 grantee of lands abutting on a navigable stream acquires no pecu- 
 liar rights, as incidents of his estate, in the land beyond the high- 
 water line, lying in front of his land ; but in virtue of a local 
 custom long prevalent in this State, and now having the force of 
 established law, the adjacency of his land to the stream invests 
 him with a license to fill in and wharf out, on the public domain, 
 to such an extent as does not interfere with the public rights of 
 
 ^Ladies Seamen's Friend 8oc. v. Ralstead, 58 Conn. 144. 
 
 ^Harlan & H. Co. v. Paschall, 5 Del. Ch. 435. 
 
 » * ^Eoboken v. Pennsylvania B. Co. 124 U. S. 656, 31 L. ed. 543.
 
 Chap. XVII.] TITLE IN SEA SHORE, ETC. 385 
 
 fishing and navigation ; and tliis license, when executed, becomes 
 irrevocable, and confers on 'the riparian owner a good and inde- 
 feasible title to the land thus reclaimed.' 
 
 In New York, under patents issued in 1660 and 1686 of lands in 
 Harlem to the freeholders of Harlem and of New York City, 
 those bounded on a creek over which the waters of the Harlem 
 flow at hiffh water belona; to the freeholders, and not to the eitv." 
 The title to the waters of Huntington Bay is in the trustees of the 
 Town of Huntington.' 
 
 An owner of lands in the City of New York, fronting on the 
 East River, has no rights whatever in respect to the lands between 
 high and low- water mark, except such as he may have derived by 
 a grant from the owner thereof, the corporation of the City of 
 New York.* 
 
 Under Acts 1849, chap. 302; 1868, chap. 305 ; 1880, chap. 518, 
 — riparian owners of land on East River, in Brooklyn, were vested 
 with the fee of the land extending to the water line of the river ; 
 they have a superior right to build wharves and collect tolls, and 
 may collect damages for a wrongful interference with their rights." 
 
 A deed, by an individual, of property including a stream in 
 which the tide ebbs and flows, and the land under which therefore 
 belongs to the State, will not convey the bed of the stream bej'ond 
 high-water mark.* The grantee of lands under navigable waters 
 in front of his uplands cannot restrain the grantee of similar ad- 
 joining lands under water from erecting thereon dykes which will 
 prevent him from towing ice cakes across them to his own premi- 
 ses; nor can he question the legality of such structure.' In New 
 York and Pennsylvania it has been held that the rules of the com- 
 mon law do not apply to such great navigable streams as the Hud- 
 son, Mohawk and Delaware Rivers, though the}'- may not be tidal 
 
 ^OougTi V. Bell 22 N. J. L. 441; Stevens v. Paterson <t N. R. Co. 34 N. J. L. 
 
 532; New Jersey Zinc & Iron Co. v. Morris Canal & Bkg. Co. 44 N. J. Eq. 
 
 398, 1 L. R. A. 133, 13 Cent. Rep. 342; Newark Aqueduct Board v. Fas- 
 
 saic, 45 N. J. Eq. 393. 
 ^Breen v. Locke, 46 Hun, 291. 
 ^People V. Lowndea, 55 Hun, 4G9. 
 
 *Bedlow V. New Yoi-k Floating Dry Dock Co. 44 Hun, 878. 
 ^Steers v. Brooklyn, 102 N. Y. 51, 1 Cent. Rep. 798. 
 ^Roberts V. Baumgarten, 110 N. Y. 380, 13 Cent. Rep. 410. 
 1 Knickerbocker Ice Co. v. Schultz, 116 N. Y. 382. 
 25
 
 3S6 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 rivers thronghont ; that the title of such streams is in the govern- 
 ment in trust for the people, and tliat -the State may use the wa- 
 ters, or authorize their use, for the pui-poses for w^hich they ar& 
 held in trust, witliout any compensation to riparian proprietors 
 who are damaged by such use. 
 
 On account of the smallness of the non-tidal rivers in England 
 tide-waters only were in fact navigable, and hence the rule as tO' 
 property was often expressed as applicable to tide-waters only, 
 although the reason of the rule, the protection of navigation, 
 would make it apply to all navigable waters. In many of the 
 States the form instead of the substance of the rule has been 
 adopted, and the public title to the shores and beds of navigable 
 rivers is in such States confined to tide-waters.' In Iowa the true 
 rule has been adopted, and the soil of the rivers and the banks to- 
 high-water mark belongs to the State, and the title of the riparian, 
 proprietor extends only to that line.' 
 
 The public authorities have the right, in Iowa, to build wharves- 
 and levees on the bank of the Mississippi below high-water mark, 
 and make other improvements thereon necessary to navigation or 
 public passage by railways or otherwise, without the assent of the 
 adjacent proprietor and without making him compensation.* But 
 a railroad company, under the power of eminent domain granted 
 by the State, cannot appropriate a pier to its own use without 
 compensating the owner." 
 
 The repeal of the Act of Congress which declared the Des 
 Moines River to be a navigable stream did not invest riparian 
 owners with title beyond high-water mark.' 
 
 A pier erected in the navigable water of the Mississippi River,, 
 for the sole use of the riparian owner, without authority except 
 such as may arise from his ownership of the adjacent shore, is an 
 
 ^People V. Canal Appraisers, 33 N. Y. 461; Varich v. Smith, 9 Paige, 547, 4 
 N. Y. Ch. L. ed. 811; Carson v. Blazer, 2 Binn. 475; Shrunk v. Schuyl- 
 kill Nn-v. Co. 14 Serg. & R. 71; Bundle v. Delaioare & B. Canal Co. 55 U. 
 S. 14 How. 80, 14 L. ed. 335. 
 
 ^Barney v. Keokuk, 94 U. S. 324, 34 L. ed. 224. 
 
 ^McManns v. Carmichael, 3 Iowa, 1; Haight v. Keokuk, 4 Iowa, 199; Tom- 
 lin Y. Dulnique, B. & M. B. Co. 32 Iowa, 106; Barrtey v. Keokuk, 94 U. 
 S. 324, 24 L. ed. 224. 
 
 ^Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224. 
 
 ^Davenport & N. W. B. Co. v. Bemcick, 102 U. S. 180, 26 L. ed. 51. 
 
 ^Chicago, B. & Q. B. Co. v. Porter, 72 Iowa, 426.
 
 Chap. XYIL] TITLE IN SEA SHORE, ETC. 387 
 
 unlawful structure, and the owner is liable for the sinkinir of a 
 barge against it in the night.' Such a structure differs materially 
 from wharves or piers made to aid navigation, and regulated by 
 city or town ordinances, or by statutes or other competent authoi-- 
 ity, and from piers built for railroad bridges across navigable 
 streams, which are authorized by Acts of Congress or Statutes of 
 the States.^ 
 
 "Where the title to lands cov'ered by rivers which are naviijable 
 in fact is in the State, whether the tide ebbs and flows in them 
 or not, the holder under a United States patent of land bordering 
 on such river cannot maintain an action to recover damages for 
 the removal of gravel from the river bed in front of his land below 
 high-water mark ; ' and a gravel bar in a river bed, which is cov- 
 ered at the ordinary stage of high water, at which time steamers 
 pass over it in safety, but which is bare at low water, upon which 
 no vegetation grows, and which is not covered by soil, is the prop- 
 ert}'^ of the State and not of the riparian proprietor.* 
 
 By the laws of Pennsylvania the riparian owners along the large 
 rivers of that State own absolutely only to the bank, and have no 
 exclusive right to the soil or water of such rivers to the middle 
 thread of the water. ^ But in the absence of anything to show 
 that the parties had a different intention, a grant of land bounded 
 upon the other navigable rivers extends to low-water mark, sub- 
 ject to the right of the public for the purpose of navigation." 
 
 In Louisiana the proprietor of the soil adjacent to a river has no 
 right to appropriate to his exclusive use the banks of a navigable 
 watercourse, because he has no property in the use thereof. Its use 
 belongs to the public' The bank of a river is not sold, but passes 
 as an accessory of the contiguous land when sold, and the property 
 of the bank belongs to the adjacent proprietor.* The City of New 
 Orleans has the right of building levees and wharves on the banks 
 of the Mississippi River, within its corporate limits, for the public 
 
 > ^Atlee V. Northwestern Union Packet Co. 88 U. S. 21 Wall. 389, 22 L ed. 
 
 019. 
 » *St. LoulH, J. M. & S. R. Co. V. Ramsey (Ark. May 24, 1890) 8 L. R. A. 559. 
 ^Rundle v. Dehmare & R. Canal Co. 55 U. S. 14 How. 80, 14 L. ed. 335. 
 ^Palmer v. Farrell, 129 Pa. 162. 
 ''Sweeney v. Shakespeare, 42 La. Ann. — . 
 ^Leoruird v. Baton Rouge, 39 La. Ann. 275,
 
 388 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 utilitj,= — with the exceptions established by paramount law, — and 
 of collecting reasonable wharfage for their use.' 
 
 The erection of a wharf by an owner of a lot on San Francisco 
 Bay was not only an interference with the rightful control of 
 the city over the space occupied by it, but was an encroachment 
 upon the soil of the State, which it could remove at pleasure." 
 Where a patent issued on a confirmed Mexican grant describes the 
 land conveyed as bounded by a navigal^le river, the title extends 
 only to the edge of the stream, though a portion of the river be- 
 tween an opposite island and the mainland be not navigable.* 
 Under the California statutes, a title to a lot on the Bay of San 
 Francisco was in subordination to the control of the city over the 
 space immediately beyond the line of the water-front, and to the 
 j'ight of the State to regulate the construction of wharves and other 
 improvements.* 
 
 In Oregon, at the time of the platting of Astoria, by one 
 McClure, in 1847, the title of the land lying between high and 
 low water mark upon the Columbia River was in the State, and 
 could not be conveyed by a riparian owner.* 
 
 In Minnesota, the title to the lands bordering on navigable 
 streams, under title derived from the United States, stops at the 
 stream, and all such streams remain public highways.' The State 
 holds the title to the soil in navigable waters to low-water mark in 
 trust for the people, and chiefly for the protection of the right of 
 navigation. But a riparian owner is entitled to fill in and make 
 improvements in shallow waters in front of his land to the line of 
 navigability ; and his rights therein can be interfered with only by 
 the State for public purposes.^ 
 
 In Kentucky a riparian proprietor on a navigable stream above 
 tide-water has the right to use the banks and water in any manner 
 not inconsistent with the public easement or right of way. Patents 
 to land on each side of a navigable river, calling for the river and 
 
 ^New Orleans, M. & T. R. Co. v. mierman,105 U. S. 166, 26 L. ed. 1015. 
 
 « Weber v. State Harbor Comrs. 85 U. S. 18 Wall. 57, 31 L. ed. 798. 
 
 'Packer v. Bird, 71 Cal. 134. 
 
 * Weber v. State Birbor Gomrs. 85 U. S, 18 Wall. 57, 21 L. ed. 798. 
 
 ^Hobson V. Monteith, 15 Or. 251. 
 
 ^St. Paul & P. R. Go. V. Schurmeier, 74 U. S. 7 Wall. 272, 19 L. ed. 74. 
 
 ''Miller v. Mendenhall, 43 Minn. 95, 8 L. R. A. 89.
 
 Chap. XVII.] TITLE IN SEA SHORE, ETC. 889 
 
 its meanders, vest in eacli grantee tlie right to the soil under tlie 
 water on his side of the river, to its thread or centre ; and hence 
 a subsequent patent ap])ropriating the bed of the river is void.' 
 
 Above the line where the tide ceases to have any effect, the rule 
 of the common law as to property on tidal rivers is reversed in 
 most States and the property in the soil or bed of the river is 
 in the riparian proprietors ; and this is true also of all streams, not 
 tidal, that are not legally navigable.' 
 
 In Missouri the Act of Congress providing for the admission of 
 Missouri into the Union left the rights of riparian owners on the 
 Mississippi River to be settled according to the principles of state 
 law.' The eastern boundarj' of the City of St. Louis is the east- 
 ern boundary of Missouri in the middle of the channel of the Mis- 
 sissippi River.* Where a street or passageway was permanently 
 estabhshed, for public use, between the river and a block of land, 
 when the town was laid out, the owners of that block were not 
 riparian proprietors of the land between it and the river.' 
 
 A riparian owner on a navigable stream cannot maintain 
 a suit at common law against public agents to recover conse- 
 quential damages resulting from obstructing a stream in pursuance 
 of legislative authority, unless that authority has been transcended 
 or unless there was a wanton injury inflicted, or carelessness, neg- 
 ligence or want of skill in causing the obstruction.' 
 
 ' Williamsburg Boom Co. v. Smith, 84 Ky. 373. 
 
 »See Elder y. Burrus, 6 Humph. 358, 366; Stuart v. Clark, 2 Swan, 9, 58 
 Am. Dec. 49; Gaston v. Mace, 33 W. Va. 14, 5 L. R. A. 892; Mill River 
 Woolen Mfg. Co. v. Smith, 34 Conn. 463; Norway Plains Co. v. Bradley, 
 53 N. H. 86; Fletcher v. Phelps. 28 Vt. 257, 262; Holden v. Robinson 
 Mfg. Go. 65 Me. 315; Com. v. Vincent, 108 Mass. 441, 447; Uughcs v. 
 Providence & W. R. Co. 3 R. I. 508, 512; Tyler v. Wilkimon, 4 Mason, 
 397; Chenango Bridge Co. v. Paiqe, 83 N. Y. 178; Morgan v. King, 35 N. 
 Y. 454; Mott v. Mott, 68 X. Y. 246; Pierrepont v. Loveless, 72 N. Y. 311, 
 216; Canal Appraisers v. People, 17 Wend. 571, 597; Fort Plain Bridge 
 Co. V. Smith, 30 N. Y. 44; People v. Canal Appraisers, 33 N. Y. 401; 
 Palmer v. Mulligan, 8 Caines, 307; Varick v. Smith, 9 Pai,s;e, 547, 4 N. 
 Y. Ch. L. ed. 811; Canal Fund Comrs. -v. Eempshall, 26 Wend. 404; 
 McCullough v. Wall, 4 Rich. L. 68; Hovck v. Tales, 82 111. 179; Wash- 
 ington Ice Co. V. Shortall, 101 111. 46; Ensminger v. People, 47 111. 384; 
 Chicago v. Laflin, 49 111. 172; Gavit v. Chambers, 3 Ohio, 496; June v. 
 Purcell, 36 Ohio St. 396; Maxwell v. Bay City Bridge Co. 41 Mich. 453, 
 466; Olson v. Merrill, 42 Wis. 203. 
 
 *St. Louis V. Myers, 113 U. S. 566, 28 L. ed. 1181. 
 
 *St. Louis Public Schools v. Risley, 77 U. S. 10 Wall. 91, 19 L. ed. 850; Jones 
 V. Soulard, 65 U. S. 34 How. 41, 16 L. ed. 604. 
 
 ^St. Louis Public ScJwols v. Risley, 77 U. S. 10 Wall. 91, 19 L. ed. 850. 
 
 ^NortJwrn Transp. Co. v. Chicago, 99 U. S. 635, 25 L. ed. 336.
 
 CHAPTER XYIIL 
 
 NAVIGABLE WATER FilOiNT-CONTROL AND CARE THEREOF. 
 
 Sec. 42. Control of Municipal Corporation over 'Sliores and Banks 
 
 of Navigable Waters. — Duty of Care of Structures thereon. 
 Sec. 43. Title to Lands Conveyed along a Water Front, 
 Sec. 44. Alluvion, Accretion and Dereliction. 
 
 Section 42. — Control of Municipal Corporation over 
 Shores and Banks of J^avigahle Waters.— 
 Daty of Care of Structures thereon. 
 
 The Legislature can, for the protection of the rights of the pub- 
 lic in navigation, or for the security of the coast, regulate the use 
 of the territory between high and low water mark, and can, with- 
 out compensation, prohibit taking gravel from a beach or building 
 upon flats, whenever in its opinion such prohibition is necessary.' 
 So a city has the right to control, manage and administer the use of 
 the banks of a navigable river within her limits, for the public con- 
 venience and utility ; to establish landing places for vessels, boats 
 and barges ; to determine what are proper and needed facilities for 
 commerce, and on what part of the bank or batture they maybe es- 
 tablished.* A city is bound to maintain and keep in repair a 
 wharf, although its use is solely for the benefit of the department 
 of charities and corrections, and is liable for failure to keep it in 
 safe condition.* A public pier in a city is a part and parcel of its 
 public streets, and the public have a right to enter upon the pier 
 in the same manner as upon public streets.* A landing place 
 
 ^Com. V. Tewkshury, 11 Met. 55; Com. v. Alfjer, 7 Cash. 53, 82, 104; Atty- 
 Oen. V. Boston <& L. R, Co. 118 Mass. 345-349: Henry v. Newhuryport, 
 149 Mass. 582, 5 L. R. A. 179: Weber v. State Harbor Comrs. 85 U. S. 18 
 Wall. 57, 21 L. ed. 798; Neio Orleans. M. cfe T. R. Co. v. Elierman, 105 U. 
 
 S. 166,26 L. ed. 1015; Sweeney v. Shakspeare, 42 La. Ann. ; Atlee v. 
 
 Northwesiern Union Packet Co. 88 U. S. 21 Wall. 389, 22 L. ed. 619; Mil- 
 ler v. Mendenhall, 43 Minn. 95. 8 L. R. A. 89; Northern Transp. Co. v. 
 Chicago, 99 U. S. 635, 25 L. ed. 336. 
 
 ^Sweeney v. Shakspeare, 42 La. Ann. ; Weber v. State Harbor Comrs. 85 U. 
 
 S. 18 Wall. 57, 21 L. ed. 798. 
 
 ^Philadelphia & R. R. Co. v. New York, 38 Fed. Rep. 159. 
 
 *Oluck V. Ridgewood Ice Co. (Sup. Ct. Mar. 28, 1890) 31 N. Y. S. R. 99.
 
 "Chap. XVIII.] CONTROL OF NAVIGABLE WATERS. 391 
 
 ■does not become a wharf by so designating; it in an ordinance, but 
 to become such it must be improved for that purpose;' and a mu- 
 nicipal corporation has no power to impose a tonnaoje or wliarfage 
 tax upon vessels landing on the natural bank of a river, even 
 though the wharf limits are established by ordinance.' 
 
 A shed or warehouse in connection with an elevator for the 
 storage and handling of grain or other merchandise, which is one 
 of the connecting links between the great land and water common 
 ■carriers, although it is private property and operated for private 
 gain, is for a public use and has a public trust attached to it, and 
 therefore a lease therefor of part of a public wharf is not void on the 
 ground that the property is to be used for private purposes.' 
 
 A State does not, by granting the use of a water front to a city, 
 surrender control of the navigable waters on the front and the 
 right to erect proper wharves and use them.* States within which 
 lands bordering on a river are situated have the right, not only to 
 -control and levee its banks, to prevent the adjoining country from 
 overflow, but to compel riparian owners to maintain such levees at 
 their own expense.' 
 
 The owner of coal boats and barges moored to the river bank 
 within the city limits has no authority, derivable from the pro- 
 • piietor of riparian property, through instrumentality of a lease, to 
 build houses in which to store apparatus and tackle and shelter his 
 men, by resting their foundations on piles driven in batture out- 
 side the levees.* Batture is an elevation of the bed of a river 
 under the surface of the water ; but the term is sometimes used 
 to signify the same elevation when it has risen above the surface." 
 The use of the batture as a landing and wharf for the reception 
 of coal boats and coal is a public use, the public character of which 
 is not destroyed by the fact that it is temporarily farmed out to 
 particular parties.' 
 
 The high measure of care justly due from a wharfinger to navi- 
 gators whom he invites to bring to his wharf craft for safe mooring 
 
 ' ^Gape Oirardeau v. Campbell, 26 IMo. App. 12. 
 
 ^Belcher's Sugar Ref. Co. v. St. Louis Grain Elev. Co. (Mo. June 2, 1890) 8 L. 
 
 R. A. 801. 
 *Payne v. English, 79 Cal. 540. 
 ''Lamb v. Reclamation Dint. No. lOS, 73 Cal. 125, and cases cited. 
 
 ^Siceeney v. Shaknpeare, 42 La. Ann. . 
 
 ' ^Leonard v. Baton Rouge, 39 La. Ann. 275.
 
 392 IMPOSED DUTIES, PERSONAL. [Part 11. 
 
 is not due from a city to the owner of a floating coal yard kept fas- 
 tened to the shore,who is in the exchisive possession of the place and 
 pays a fixed rental to the citj.' If the occupant of a float kept fas- 
 tened to the shore, who pays a fixed rental to the city for the use 
 thereof, made no complaint when some of the posts to which the 
 float was attached were removed, and did nothing to have them 
 replaced or himself to provide substitutes, the city is not liable 
 for the carrying off of the float by the breaking of the fastenings 
 in a flood of water and ice, especially where the posts to which 
 they were attached held firm." 
 
 The fact that a city has adopted an ordinance providing a method 
 for the removal of vessels sunk at any of the city docks does not 
 charge it with the duty of enforcing the ordinance, or make it 
 liable for its non-enforcement.' 
 
 One who, in attempting to reach a dock by means of a gang 
 plank which was not provided with guards, stepped off to the side 
 and fell through a stair opening which was left uncovered, is not 
 entitled to recover against the city for his injuries, where there is- 
 no proof that the boat or gang plank was the property of the city, 
 or that they were managed or operated by its servants, or that the 
 dock needed repair or was defective or dangerous.* 
 
 A plaintiff in ejectment claiming a strip of land under water 
 adjoining a dock, under a deed which conveyed all riparian and 
 water rights, but subject to the use and rights of the people in so- 
 much as is included in the highway and public landing, the deed 
 being made when the dock was owned by the town and the piece 
 of land in controversy was used as a slip to land coal and freight, 
 neither plaintiff nor his grantors ever having had possession there- 
 of, is not entitled to recover against one employed by the village 
 as dock master, having a lease or license from the village, and oc- 
 cupying a building erected on piles and connected with the dock 
 by a bridge.* 
 
 1 "^Jackson v. Allegheny, 41 Fed. Rep. 886. 
 
 ^Coonley v. Albany, 57 Hun, 327. 
 
 ^Holland v. Ne^o York (C. P. April 7, 1890) 30 N". Y. S. R. 850. 
 
 ^Stimmel v. Watts (Sup. Ct. Feb. 10, 1890j 30 N. Y. S. R. 380.
 
 Cbap. XVIII.] TITLE TO LANDS ALONG WATER FRONT. 393 
 
 Section '^Z.— Title to Lands Conveyed along a Water 
 
 Front. 
 
 Where lands are bonnded on sea shore, the shore itself will not 
 be considered as within the boundaries. The owner holds to higli- 
 water mark.' The owner takes the chance of gradual loss as well 
 as of gradual gain.^ The external bounds of estates situated upon 
 the shore of the sea or of navigable rivers may gradually shift as 
 the water recedes or encroaches, although the right to the shore 
 itself of course remains in the Crown or State.' The "ocean," as 
 description in a deed, calls for the line of high-water mark as a 
 boundary, with liability to fluctuations.' 
 
 The principles governing the rights of riparian proprietors do 
 not apply to a grant of land bordering on a lake and marsh. The 
 grantee, by his patent, takes to the lines of his fractional division.^ 
 Where one who owns a tract of land that surrounds and underlies 
 a non-navigable lake, the length of which isdistinguishably gi-eater 
 than its breadth, conveys a parcel thereof that borders on the lake, 
 by a description that makes the lake one of its boundaries, the pre- 
 sumption is that the parties do not intend that the grantor should 
 retain the title to the land between the edge of the water and the 
 centre of the lake ; and the title of the purchaser, therefore, will 
 extend to the centre thereof. If the call in the description of 
 land lying by an inland non-navigable lake be to and thence along 
 the margin of the lake, the title of the purchaser will extend to 
 low-water mark only. If a description be b}^ metes and bounds, 
 no reference being made therein to a lake by which the land lies, 
 then only the land included within the lines as fixed by the terms 
 used by the parties to the deed will pass to the grantee.' Where 
 
 ^Storer v. Freedman, 6 Mass. 439; Littkiield v. Mnxicell, 31 Me. 134; Nile/tv. 
 
 Patch, 13 Gray, 257; 3 Kent, Com. 437; East Hampton v. Kirk, 6 Ilun, 
 
 257; Uiiited States v. Pacheco, 69 U. S. 2 Wall. 587, 17 L. ed. 865. 
 ^St. Clair Co. v. Lovingston, 90 U. S. 23 Wall. 46, 63, 23 L. ed. 59, 62; New 
 
 Orleans v. United States, 35 U. S. 10 Pet. 662, 717, 9 L. ed. 573; Chapman 
 
 V. Uoskins. 2 Md. Ch. 485; Oiraud v. Hucjhes. 1 Gill & J. 249; Berry v. 
 
 Snyder, 3 Bush, 266, 277; Smith v. St. Louis Public Schools, 30 Mo. 290; 
 
 Stevens V. Paterson d iV. B. Co. 34 N. J. L. 532, 540; Municipality iVo. £ 
 
 V. Orleans Cotton Press, 18 La. 213. 
 'Scratton v. Brown, 4 Barn. & C. 485; Rex v. Yarhorourjh, 3 Barn. & C. 91; 
 
 Gould, Waters, 285; Nixon v. Walter, 41 N. J. Eq. 103, 4 Cent. Rep. 875. 
 *Mulry V. Norton, 100 N. Y. 424, 1 Cent. Rep. 748. 
 '■Palmer v. Dodd, 64 Mich. 474, 7 West. Rep. 797. 
 *Lemieck v. Nye, 8 L. R. A. 578, 47 Ohio St. — .
 
 ■394: IMPOSED DUTIES, PERSONAL. [Part II. 
 
 the line is high-water mark of a pond, tlie grantee is not entitled 
 to any accretions of land left dry by the pond receding.' Where 
 there is a boundary npon a fixxed monnnient which has width, — as 
 a way, stream or wall, — even if the measurements run only to the 
 side of it, the title to the land conveyed passes to the line which 
 would be indicated by the middle of the monument.' 
 
 A deed of land on one side of a pond, describing it as beginning 
 at a natural object, and running along said pond to the outlet 
 thereof, does not convey the land to the centre of the pond, but 
 only to low-water mark.' Deeds in a chain of title plainly indi- 
 cating that the boundary of the land is the bank of a pond pass no 
 title to the land under the pond, either to the grantees in such 
 deeds or to their grantees or assigns." The boundary of land "on 
 the edge of the pond" is not a boundary by a stream which may 
 change by gradual washings and deposits, but the territory is lim- 
 ited by a defined boundary, without regard to the contingent sub- 
 sidence of the water constituting the pond and thereby leaving the 
 land dry.' 
 
 The doctrine that, on rivers where the tide ebbs and flows, 
 grants of land are bounded by ordinary high-water mark, has no 
 application in cases of lands bounded by fresh-water rivers. Nor 
 does the size of the river alter the rule.' All grants of land 
 bounded by fresh-water rivers, where the expressions designating 
 the water line are general, confer the proprietorship on the grantee 
 to the middle thread of the stream, and entitle him to the accre- 
 tions,' except where the State claims the ownership. 
 
 The line of one owning to the centre of a stream remains at 
 the centre, however variable ; but if his line is a fixed and per- 
 manent one, his boundaries are not enlarged by the receding of 
 the stream.* 
 
 Where a water line is the boundary of a named lot, that line re- 
 mains the boundary, no matter how it shifts ; and a. deed describ- 
 ing the lot by number or name conveys the land up to that shift- 
 
 ^Cook V. McGlure, 58 N. Y. 437, 17 Am. Rep. 270. 
 
 ^ Gould V. Eastern E. Co. 143 Mass. 85, 2 New Eng. Rep. 595. 
 
 ^Gouverneur v. National Ice Co. 57 Hun, 474. 
 
 4 ^Holden v. Chandler, 61 Vt. 291. 
 
 6 \Tones v. Soulard, 65 U. S. 24 How. 41, 16 L. ed. 604. 
 
 ^Uolden v. Chandler, 61 Vt. 291.
 
 •Chap. XVIIL] TITLE TO LANDS ALONG WATEK FliONT. 305 
 
 ing line.' Under a patent bounded by a meandered stream, tlie 
 «treara itself, and not the meandered line, constitutes the boundary 
 line." 
 
 The question as to whether a grant of land bounded upon a 
 navigable river extends to high or low water mark is, in each case, 
 •determinable upon the true and proper construction of the grant 
 itself.' It cannot be presumed that a conveyance of a few feet of 
 flats between a street and wall bordering on a channel carried with 
 it any right in the channel, especially where a portion of the land 
 "and a wharf of the grantors intervened.'' 
 
 Land under water, extending from low-water mark to the mar- 
 gin of the river or water line as permanently raised by clams, is 
 not included in a tax deed embracing land to the margin of the 
 river, describing the land generally as land lying between a cer- 
 tain street in a plat and the river.* Where a deed conveys the 
 •entire water-front, land under water, easements and privileges in 
 a river upon, by or appurtenant to a lot, a provision in the deed 
 for additional flowage is not inconsistent with the intention to 
 ^rant the fee of so much of the shore above low-water mark as 
 is covered by water raised by dams existing at the date of the 
 deed.* 
 
 In the absence of any reservation or incompatible grant, the lay- 
 ing out of a street in front of upland does not deprive the owner 
 •of his general riparian rights/ 
 
 A railroad company which has not acquired or used land for 
 any purpose except the construction thereon of its roadbed is not 
 an adjacent owner of lands under water, within the meaning of 
 the New York Statute relating to grants of such lands ; and an 
 •owner of lands bordering on a river remains an adjacent owner, 
 within the meaning of the New York Statute relating to grants of 
 land under water, after the construction of a railroad at some dis- 
 tance from the shore, leaving a bay of considerable size between 
 the road and the original shore line, into which the tide ebbs and 
 
 ^East Omaha Land Co. v. Jeffries, 40 Fed. Rep. 386; Jefferis v. East Omaha 
 
 Land Co. 134 U. S. 178, 33 L. ed. 873. 
 ^Sphung v. Moore, 120 Ind. 352. 
 ^Palmer v. Farrell, 129 Pa. 162. 
 
 * Ladies Seamen's Friend Soc. v. Ralstead, 58 Conn. 144. 
 
 * ^Eauiman v. St. Anthony Falls Water-Poicer Co. 43 Minn. 60. 
 '^ Prior V. Comstock, 17 R. I. — .
 
 396 IMPOSED DUTIES, PERSONAL. [Part 11, 
 
 flows, and in which the owner's lands are washed by the waters of 
 tlie river.' 
 
 Section 44. — Alluvion, Accretion and Dereliction. 
 
 Alhivion is an addition to riparian land, gradually and imper- 
 ceptibly made by the water to which the land is conterminous.* 
 Alluvion, in tlie French law, is an increase of land which is made 
 by degrees {peu dpeu) on the shores of the sea, of navigable and 
 other rivers, by the earth which the water brings there.' It is 
 imperceptible in its progress, but becomes perceptible by lapse of 
 time, and although the quantity of land gained from the waters 
 may eventually be very great, the State will not be entitled to it, 
 if it be added insensibly and by slow degrees. But the accretion 
 of several acres of land at the mouth of the Chicago River, formed 
 from earth washed there by the waters of Lake Michigan, and 
 deposited against a pier constructed by the general government 
 for the improvement of the harbor, must be regarded as belong- 
 ing to the United States.* By alluvion, as it is used in law, is 
 meant such slow, gradual and insensible accretion that it cannot 
 be shown at what time it occurred." This is the rule of the civil 
 law as well as of the common law. The former states it thus: 
 "That ground which a river has added to your estate by alluvion 
 becomes your own by the law of nations, and that is said to be al- 
 luvion w^hich is added so gradually that no one can judge how 
 much is added in each moment of time.'" It cannot be granted 
 by the State as vacant land, but belongs to the riparian proprietor.' 
 
 ^Rumsey v. Neio York & N. E. R. Go. 114 N. Y. 423. 
 
 •^St. Clair County v. Lovingston, 90 U. S. 23 Wall. 46, 23 L. ed. 53. 
 
 sQuyot, Repertaire Universelle, 113. 
 
 *5 Ops. Atty-Gen. 264; Doev. Beebe, 54 U. S. 13 How. 25, 14 L. ed. 35. 
 
 ^Hopkins Academy v. Bickinson, 9 Gush. 551. 
 
 *Coop. Inst. tit. 2, § 1; Angell, Watercourses, § 53; Tyler, Law of Bound- 
 aries, 83, 84; Harg. Tracts, De Jure Mar in, cap. 1; 2 Bl. Corn. 262; 2 
 Bract, lib. 2, cap. 2, § 2; Schultes, 118; Puff. 4, 7, 12; Code Napoleon, 
 556, 561; Phear, Rights of Waters, 12; Halseyy. McCormick, 18 N. Y. 
 147. 
 
 "'Munidpality No. 2 v. Orleans Cotton Press, 18 La. 123; Deerfield v. Arms, 
 17 Pick. 41; Pulley v. Municipality No. 2, 18 La. 278; Patterson v. Gel 
 ston, 23 Md. 432; Morgan v. ticott, 26 Pa. 51; Lafayette v. Holland, 18 La. 
 286; Kraut V. Crawford, 18 Iowa, 549; GerrisJi v. Clough, 48 N. II. 9; St. 
 Louis Public Schools v. Risley, 40 Mo. 356; Emans v. Tarnbull, 2 Johns. 
 322; 3 Kent, Com. marg. p. 428; Smith v. St. Louis Public Sc/wols, 30 Mo.
 
 Chap. XYIIL] ALLUVION, accretion and dereliction. 397 
 
 If by the union of natural and artificial causes the accretion oc- 
 curs it is for the benefit of the riparian owner.' The same rule 
 holds if the cause be artificial.' 
 
 When soil has been wronofull}' deposited by human hands in 
 the ocean or other public waters, in front of the uplands, so that 
 the water-line is carried f urtlier out, the same rule applies as when 
 such a deposit has been gradually made by natural causes, ?'. e., 
 the accretion becomes the property of the owner of the upland, 
 and his title still extends to the water-line.' If an island in a 
 non-navigable stream results from accretion, it belongs to the 
 owner of the bank on the same side of the filum aquce.^ If 
 formed in the centre, so as to divide the thread of the river, it 
 will be divided between the owners of the opposite banks accord- 
 ing to the original thread of the river between them.' 
 
 Upon formation of alluvion on lands on unnavigable rivers, 
 
 290; Spiqener v. Cooner, 8 Rich. L. 301; Hopkins Academy v. Dickinson. 
 9 Gush. 551; New Orleans v. United States, 85 U. S. 10 Pet. 662, 9 L. ed. 
 573; Pen-y v. Pratt, 31 Conn. 442; Jones v. Johnston, 59 U. S. 18 How. 
 150, 15 L. ed. 320; Barre't v. New Orleans, 13 La. Ann. 105; Johnston v. 
 Jones, 66 U. S. 1 Black, 209, 17 L. ed. 117: Jones v. Soulard, 65 U. S. 34 
 How. 41. 16 L. ed. 604; Banks v. Ogden, 69 U. S. 2 Wall. 57, 17 L. ed. 
 818; St. Louis Public Schools v. Risley, 77 U. S. 10 Wall. 91, 19 L. ed. 
 850 ; Morgan v. Livingston, 6 Mart. O. S. 216 ; Livingi^ton v. Heer- 
 man, 9 Marl. O. S. 656; Rex v. Tarborough, 3 Barn. & C. 91, 2 Blisrli, 
 N. R. 147; Barre v. New Orleans, 22 La. Ann. 612; Gifford v. Tarbor- 
 ough, 5 Bing. 162; Hagan v. Campbell, 8 Port. (Ala.) 9, 33 Am. Dec. 267; 
 Chapman v. Hoskins. 2 Md. Ch. 485; Giraud v. Hughes, 1 Gill. & J. 249; 
 Ridgely v. Johnson, 1 Bland. Ch. 316, note; Goodsell v. Lawson, 42 Md. 
 diS-yMinto V. Delaney, 7 Or. 337; Lammers v. Nissen, 4 Neb. 245; Ingra- 
 ham,v. Wilkinson, 4 Pick. 268, 273; St. Glair County v. Lovinqston, 90 
 U. S. 23 Wall. 46, 23 L. ed. 59; Barney v. Keokuk, 94 U. S. 324, 24 L. 
 ed. 224; Niehaus v. Shepherd, 26 Ohio St. 45; Baltimore & 0. R. Co. v. 
 Chase, 43 Md. 23; Cook v. Burlington, 30 Iowa, 94, 6 Am. Rep. 649; Ste 
 phenson v. Goff, 10 Rob. (La.) 99, 43 Am. Dec. 171. 
 
 ^Adains v. Frothingham, 3 Mass. 352, 3 Am. Dec. 151; People v. Central R. 
 Co. 42 N. Y. 315. 
 
 '^Godfrey v. Altoti, 12 111. 37; Halsey v. McCormick, 18 N. Y. 149; Lockwood 
 V. New York & N. H. R. Co. 37 Conn. 387. 
 
 ^Steers v. Brooklyn, 101 N. Y. 51, 1 Cent. Rep. 798; Huse v. Glover, 119 U. 
 S. 543, 30 L. ed. 487. 
 
 •»2 Washb. Real Prop. 452, 453; 2 Sharswood, Bl. Com. 261, note; 3 Kent, 
 Com. 428; Hargrave, Law Tr. 5; Hale, De Jur. Mar. 14; Rex v. Tarbor- 
 ough, 3 Barn. & C. 91, 107; Ex parte Jennings, 6 Cow. 537, note; Ingra- 
 ham V. Wilkinson, 4 Pick. 268; Deerfield v. Anns, 17 Pick. 41; Woodbury 
 V. Short, 17 Vt. 387. 
 
 ^Ingraham v. Wilkinson, 4 Pick. 268, 16 Am. Dec. 342; Deerfield v. Arms, 
 17 Pick. 41, 28 Am. Dec. 276; Hopkins Academy v. Dickinson, 9 Cush. 
 548; BatcMder v. Keniston, 51 N. H. 496; Johnston v. Jones, 66 U. S. 1 
 Black, 209, 223, 17 L. ed. 117, 121; Clark v. Campau, 19 Mich. 325; 
 Seneca Nation v. Knight, 23 N. Y. 498.
 
 398 IMPOSED DUTIES, PERSONAL. [Part !!► 
 
 owned by conterminous proprietors, the rule for distribution of 
 accretions is to extend the side lines of each owner to the nearest 
 river bank, giving to each the alluvial deposits in front of his own 
 land.' If one of conterminous proprietors of land bounded on a. 
 cove, by filling in, makes new land extending into the cove oppo- 
 site the premises of both, the rule used in division of alluvion may be- 
 applied in dividing the new-made land between them." If a river 
 suddenly leaves its bed, the title to the dry soil is unchanged.' 
 
 Land formed by accretion on a fractional quarter-section is a 
 part thereof, and passes by a deed conveying the fractional quar- 
 ter by its number," The owner of an island between two chan- 
 nels of a river, which, by a change in the course of the channels, 
 has gradually pushed up stream as the result of natural accretions,, 
 so as to cover the whole front of the lands of a riparian owner, 
 whicli formerly extended higher up than the island, where the 
 channels continue to be distinct, although the one between the 
 lands mentioned has become unnavigable except at high tide, is 
 entitled to the accretions, under Cal. Civ. Code, sec. 1014, which 
 is merel}' declaratory of the law as it has always been." 
 
 The title of a riparian owner on a non-navigable stream to ac- 
 cretions is not limited by the middle line of the stream.' He 
 takes whatever front upon the river its change of bed gives him, 
 and by lines that run from the termini of his upland lines at right 
 angles to the centre line of the stream.' 
 
 Land formed in a river is the property of the owner of the 
 river bed.* A person owning land bounded by a stream which 
 changes course gradually holds the same boundary, including the- 
 accumulated soil.* Alluvion passes to the grantee of shore land, 
 without express mention.'" But it is not applicable where the soil 
 of another is laid bare by the gradual subsidence of a mill-pond 
 caused by the decay of a dam." The law of accretion and dere- 
 
 ^Hubbard v. Manwell, 60 Vt. 235, 6 New Eng. Rep. 773. 
 
 ^Watson V. Eorne, 64 N. H. 416, 6 New Eng. Rep. 386. 
 
 ^Lynch v. Allen, 4 Dev. & B. L. 62, 32 Am. Dec. 671; Woodbury v. Shoi%. 
 
 17 Vt. 387. 
 *Tappendorff\. Downing, 76 Cal. 169. 
 ^Fillmore v. Jennings, 78 Cal. 634. 
 6 ' Welles V. Bailey, 55 Conn. 292, 4 New Eng. Rep. 841. 
 » » ^''Linthicum v. Goan, 64 Md. 439, 2 Cent. Rep. 633. 
 ^'^Eddy V. *S'^. Mars, 53 Vt. 462; Gould, "Waters, 286.
 
 Chap. XYIII.] ALLUVION, ACCRETION AND DERELICTION. 30l> 
 
 liction is the same in the case of botli navigable and non-naviga- 
 ble rivers.' There is no distinction in this respect between soil 
 gained by accretions and that uncovered by dereliction.' Owner- 
 ship of marine or alluvial soil may be acquired by accretion.' 
 If, in consequence of any such construction, land is made by ac- 
 cretion, such accretion belongs to the owner of the land to which 
 it attaches, and not to the United States.* 
 
 Past accretions belonged to the then owner, and anyone claim- 
 ing title to them must show a deed of them, the same as of any 
 other land,* All grants of land bounded, by fresh-water rivers, 
 where the expressions designating the water-line are general, con- 
 fer the proprietorship and entitle the owner to the accretion.' 
 Where defendant has been in possession under title, for more than 
 twenty years, of the land to which the accretions sued for are at- 
 tached and belong, he owns the same.'' Dereliction differs from 
 alluvion in this: that the former term applies to land made by the 
 withdrawal of the waters by which it was covered. The with- 
 drawal of the waters must be slow, gradual and imperceptible. 
 The same general rules apply to it as to alluvion.* If the waters 
 leave the shore suddenly, and land is uncovered in any large quan- 
 tities, then it belongs to the public' 
 
 The doctrine as to alluvion is equally applicable to tide-waters 
 and to non-tidal rivers and lakes.'" Before there can be a right 
 
 ^Welles V. Bailey, 55 Conn. 293, 4 New Eng. Rep. 841. 
 
 "^Handly v. Anthony, 18 U. S. 5 Wheat. 380, 5 L. ed. 113; Boorman v. Sun- 
 nuc?ts, 42 Wis. 233, 244; Gould, Waters. 284. 
 
 ^Mulry V. Norton, 100 K Y. 424, 1 Cent. Rep. 748. 
 
 n Ops. Atty-Gen. 314; Doe v. Beebe, 54 U. S. 13 How. 25. 14 L. ed. 35. 
 
 ''Jones V. Johnston, 59 U. S. 18 Flow. 150, 15 L. ed. 320. 
 
 ^Jones V. Soulard, 65 U. S. 24 How. 41, 16 L. ed. 604. 
 
 iSaulet V. Shepherd, 71 U. S. 4 Wall. 502. 18 L. ed. 442; Watkins v. Uol- 
 man, 41 U. S. 16 Pet. 25, 10 L. ed. 873. 
 
 ^Murry v. Sermon, 1 Hawks, 56; Warren v. Chambers, 25 Ark. 120, 4 Am. 
 Rep. 23; Boorman v. Sunnvchs, 42 Wis. 235. 
 
 •Britton, title Purchase, A^', Abbot of Ramsey's Case, Dyer, 326 (b); Woodward 
 V. Fox, 2 Vent. 188; Schultes, Aq. Rights, 137. 
 
 ^^Foster v. Wright, L. R. 4 0. P. Div. 438; Ford v. Lacy, 7 Hurl. & N. 151; 
 Hale, De Jure Maris, chap. 1; Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 
 224; Banks v. Ogden, 69 U. S. 2 Wall. 57, 17 L. ed. 818; St. Clair County 
 V. Lovinf/sfon, 90 U. S. 23 Wall. 46, 23 L. ed. 59; Lovingston v. St. Clair 
 County, 64 111. 56; Granger v. Swart, 1 Woolw. 88; Ridgway v. Ludlow, 
 58 Ind. 248; J5e?is<?n V. Morrow, ^i Mo. 345; Warrenv. Chambers, 25 Ark. 
 120; Murry v. Sermon, 1 Hawks, 56 ; Oiraud v. Hughes, 1 Gill & J 
 249; Lamb v. Rickets, 11 Ohio, 311; Niehaus v. Shepherd, 26 Ohio St. 40.
 
 400 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 to accretions, tliere must be an estate to M'liich the accretions can 
 attach.' A proprietor must first sliow that he owns the shore." 
 
 A riparian owner on a navigable river, whose land is washed 
 away bj rapid and perceptible stages, and lodged in the river op- 
 posite, during spring floods, is entitled to so much of the land as 
 forms in the river by this process between the adjacent shore and 
 the thread of the river, together with accumulations caused by the 
 gradual washing of an island above his land, and which fills the 
 space between the shore and the new formation in the river.' 
 
 While the title of a riparian proprietor is liable to be lost bj 
 erosion or submergence, the erosion to effect that result must be 
 accompanied bj a transportation of the land beyond the owner's 
 boundary, and it may be returned by accretion, in which case the 
 ownership temporarily lost may be regained." If, after submer- 
 gence, the water disappears from the land, either by its gradual re- 
 tirement or the elevation of the lands by natural or artificial means, 
 the proprietorship returns to the original owner.^ 'No lajDse of 
 time during which the submergence has continued bars the right 
 of the owner.* And so, if an island forms upon the land sub- 
 merged, it belongs to the original owner.' A riparian proprietor, 
 conveying lands adjacent to navigable waters, may so limit his 
 grant as to reserve to himself not only his riparian privileges in 
 the waters, but also subsequent accretions to the soil formed by 
 the operation of natural causes.* 
 
 The whole subject w^as fully considered in England, in the case 
 of Bex V. Zo)yI Yarhorough, in the King's Bench, 3 Barn. & C. 
 91 ; S. a, in the House of Lords, 2 Bligh, N. K. 147, 1 Dow 
 & C. 178; S. (7., sub nom. Gifford v. Lord Yarhorougli^ in the 
 House of Lords, 5 Bing. 168, — where it was decided in effect that 
 in cases of alternate accretion and decretion, the riparian proprie- 
 tors had movable freeholds, that is, moving into the river with 
 the soil as it was imperceptibly formed, and then again receding, 
 when by attrition it was worn away. Lord Yarborough owned 
 lands immediately adjoining the sea, to prevent the encroachment 
 
 ^SmiUt V. SJiepherd, 71 U. S. 4 Wall. 503, 18 L. ed. 442. 
 
 Wates V. Illinois Cent. R. Go. 66 U. S. 1 Black, 204, 17 L. ed. 158. 
 
 mutz V. Seeger, 35 Fed. Rep. 188. 
 
 * 6 « fMulry V. Norton, 100 N. Y. 424, 1 Cent. Rep. 748. 
 
 ^Peoi^le V, Jones, 112 N. Y. 598.
 
 Chap. XVIII.] ALLUVION, ACCRETION AND DERELICTION. 40l 
 
 of which upon his lands he built sea walls on two sides. The 
 ■ooze, sand and soil from the sea were gradually deposited outside 
 of and against these walls, until, by the accretion, some 450 acres 
 of land were made in a short time, which the Crown claimed 
 against him. But the Court of King's Bench held, and the decis- 
 ion was affirmed by the House of Lords, that, the land being 
 formed by the gradual and imperceptible action of the sea. Lord 
 Yarborough, and not the Crown, was entitled to it.' The doctrine 
 <jf the English cases is that accretion is an addition to land con- 
 terminous with the water, which is formed so slowly that its pro"*- 
 ress cannot be perceived, and does not admit of the view that, in 
 order to be accretion, the formation must be one not discernible 
 by comparison at two distinct points of time. 
 
 In New Orleans v. United States, 35 U. S. 10 Pet. 662, 9 L. ed. 
 -573, the accretion was 140 feet in width, formed in 22 years. In St. 
 Clair County v. Lovingston, 90 U. S. 23 Wall. 46, 23 L. ed. 59, 
 the court says: " In the light of the authorities, alluvion maybe 
 defined as an addition to riparian land, gradually and impercepti- 
 bly made by the water to which the land is contiguous. The test 
 as to what is gradual and imperceptible in the sense of the rule is 
 that, though the witnesses may see from time to time that prog- 
 ress has been made, they could not perceive it while the process 
 was going on."* 
 
 Where by long continued natural accretion of gravel, the bed 
 of a river, and consequently the flow of water, have become per- 
 manently altered, a riparian owner has no right, by removing the 
 accretion, to restore the flow of the water to its former state as to 
 velocity and direction. ' 
 
 'See also Be Hull & S. B. Co. 5 Mees. & W. 327; Scratton v. Bro\m, 4 
 Barn. & C. 485. 
 
 '^To the same effect are Jones v. Johnston, 59 U. S. 18 How. 150, 15 L. ed. 
 320; Jones v. Soulard, 65 U. S. 24 How. 41, 16 L. ed. 604; St. Louis Pub- 
 lic Schools V. Bisley, Tt U. S. 10 Wall. 91, 19 L. ed. 850; Ualsey v. Mc- 
 Gormick, 18 TST. Y. 147; Miilry v. Norton, 100 N. Y. 424, 1 Cent. Rep. 
 748; Hopkins Academy v. Dickinson, 9 Cusb. 544; Camden & A. Land 
 Co. V. Lippincott, 45 N. J. L. 405. 
 
 ^ Withers v. Purchase, 60 L. T, N. S, 819, 40 Alb. L. J. 214. 
 26
 
 CHAPTER XIX. 
 
 FLOATABLE AND NAVIGABLE STREAMS-USES AND ABUSES. 
 
 Sec. 45. Floatalle and Private Streams. — Title of Riparian Owner^ 
 — Beasonable Use. — Dams and Mills. — Log Driving. 
 
 Sec. 46. Easements in Rivers, Streams and Ponds Acquired ly 
 Grant. — Parol License. 
 
 Sec. 47. Where It is Uncertain ivliether the Grant Limits the Quan- 
 tity of Water or the Class of Machinery, the Limit will le Applied 
 to the Water. 
 
 Sec. 48. Easements in Flowing Water Acquired iy Prescription, 
 
 Section 45. — Floatable and Private Streams. — Title 
 of Riparian Owner.— Reasonable Use.— Dams 
 and Mills.— Log Driving. 
 
 The third class of navigable streams is made up of those streama 
 which, though not navigable for boats or lighters, are floataUe or 
 capable of valuable use in bearing logs, or the products of mines, 
 forests and tillage, to mills or markets. In fact, the public 
 right to the use of rivers for transportation purposes exists upon 
 all streams which, in their natural state, have capacity for floatage,, 
 irrespective of custom or the fact of actual public use, or the ex- 
 tent of such use.* To constitute a navigable water, it is immate- 
 rial whether a current flows through it or not. Water may be 
 navigable without a current, and it may not be although it has a 
 current; nor is a current essential to the existence of riparian 
 rights." 
 
 When a stream is in its nature capable of being used for the 
 purposes of commerce, for the floating of vessels, boats, rafts or 
 logs, then the easement exists, leaving to the owners of the bed all 
 other modes of use not inconsistent with it.* The right of the 
 
 ^Moore v. Sanhorne, 2 Mich. 591; Broion v. CMdbourne, 31 Me. 9, 50 Am. 
 
 Dec. 641; Davis v. Winslow, 51 Me. 264, 81 Am, Dec. 584. 
 ^Turner v. Holland, 65 Mich. 453, 8 West. Rep. 796. 
 Gutter V. Gallagher {Or. .Tune 18, 1890) 24 Pac. Rep. 250; Harold v. Jones, 86 
 
 Ala. 274, 3 L. R. A. 406; Weatherby v. Meiklejohn, 56 Wis. 73; Haines v.
 
 Chap. XIX.] FLOATABLE AND TKIVATE STREAMS. 403 
 
 public to use private streams for rafting and floating logs as far as 
 necessary for public accommodation is recognized.' 
 
 A watercourse will be held to be a navigable stream when its 
 natural state is such as to alford a channel for useful commerce ; 
 its condition is not affected by the formation of natural barriers^ 
 sand bars or riffles.^ So a stream of sufficient capacity and vol- 
 ume of water to float to market the products of the country, of» 
 whatever kind or however floated, will answer the latter conditions 
 of navigability ; and it is not essential that the stream should be 
 "continuously in a state suited to the flomtage.' 
 
 Where the public are authorized to use the channel of the stream 
 for floating logs, they are also authorized to use a new channel con- 
 structed by the riparian owner to divert the stream/ Or they 
 may pass their logs through a new channel created by a break in 
 the dam.* The riparian owner on streams which are merely float- 
 able is bound not to obstruct their reasonable use for that purpose.* 
 
 To show that a stream is navigable throughout the year, it is 
 sufficient to show adaptability for the purposes of navigation or 
 valuable floatage of the products of the country at the usual stage 
 of water, without reference to the past, present or prospective uses 
 of the stream for these purposes.'' Proof that a river was suffi- 
 cient for the floatage of logs and flatboats during the winter sea- 
 son, and that certain particular logs have been floated thereon, is 
 
 Welch, 14 Or. 319; Rhodes v. Otis, 33 Ala. 592; Sullivan v. Spotswood, 83 
 Ala. 167; The Daniel Ball, 77 U. S. 10 Wall. 557, 19 L. ed. 999; Ellis v. 
 Carey, 30 Ala. 725; Lexois v. Coffee County, 77 Ala. 190; The Montcllo, 87 
 U. S. 20 Wall. 430, 23 L. ed. 391; Stoughton v. iJaArer, 4 Mass. 522; Vonght 
 V. Winch, 2 Barn. & Aid. 662; Woolrych, Waters, 270; Brown v. Chad- 
 bourne, 31 Me. 9, 21. See also Carter v. Thurston, 58 N. H. 104, 106; 
 Tyirell v. Lockhart, 3 Blackf. 136; Bruhaker v. Paul, 7 Dana, 428; Sl<ite v. 
 Thompson, 2 Strobli. L. 12; Hubbard v. Bell, 54 111. 110; Peters v. New 
 Orleans, M. & C. R. Co. 56 Ala. 528; Gould, Waters, p. 114. 
 
 ^Pabnerv. Mulligaji, 3 Caines, 315; Shaw v. Crawford, 10 Johns. 237; Ex 
 parte Jennings, 6 Cow. 518; Browne v. Scofield, 8 Barb. 239; Morgan v. 
 King, 18 Barb. 282, 35 N. Y. 459; Broicn v. Chadbourne, 31 Me. 9; Moore 
 V. Sanborne, 2 Mich. 519; Pierrepont v. Loveless, 72 N. Y. 211. 
 
 ^Goodwill V. Bossier Parish Police Jury, 38 La. Ann, 752. 
 
 ^Buckiv. Cone, 25 Fla. 1; Mitter v. Gallagher (Or. June 18, 1890) 24 Pac. 
 Rep. 250. 
 
 *Dwinel v. Barnard, 28 Me. 554; Dwinel v. Veazie, 44 Me. 107. 
 
 ^Whisler v. Wilkinson, 22 Wis. 572; A. C. Conn. Co. v. LitlU S. L. Mfg. Co. 
 74 Wis. 652. 
 
 ^Morgan v. King, 18 Barb. 277; Collins v. Iloward, 65 N. II. . 
 
 "> Olive V. Stale, 86 Ala. 88, 4 L. K. A. 33.
 
 404: IMPOSED DUTIES, PERSONAL. [Part II. 
 
 not sufficient to authorize a declaration by the court, as a matter 
 of law, that the stream is a public highway, but presents a ques- 
 tion of fact for the jury.' Evidence not sufficient to authorize 
 the court to declare the character of a stream as a matter of law 
 should be submitted to the jury for their consideration in deter- 
 mining the character of the river as a matter of fact.^ 
 
 In Pennsylvania and Tennessee, where the principal fresh-water 
 rivers are held to be pul)lic property like tide-waters, fresh streams 
 which are merely floatable and have been included in the warrants 
 and surveys of the land difice as part of the public lands belong, 
 as in most States, to the riparian owners usque ad filum aqum^ 
 subject to the public right of passage.* The riparian owner owns 
 to the thread of the stream ; and if he owns upon both sides he 
 owns the land under the stream ; he owns the rocks in the bed of 
 the stream ; he owns everything that is attached to the realty ; and 
 no man can remove a rock from a floatable stream except by per- 
 mission of the riparian owner, or by permission from public grant, 
 by reason of original authority, and then upon provision being 
 made for any damages or compensation awarded to the riparian 
 owner for the taking of his property.* But in North Carolina 
 the riparian owner of land on the bank of an unnavigable stream 
 has no title ad filum aquce, if the State has granted the bed of the 
 stream to another.^ 
 
 Streams which are not floatable, or cannot in tlieir natural state 
 be used for the carriage of boats, rafts or other property, are abso- 
 lutely private.' If the stream is so small and shallow that logs 
 
 Wlive V. State, 86 Ala. 88, 4 L. R. A. 33. 
 
 ^Peters v. New Orleans, M. & C. R. Co. 56 Ala. 528; Olive v. State, 86 Ala. 
 
 88, 4 L. R. A. 33. 
 'Coovert v. 0' Conner, 8 Watts, 477; Barclay R. &■ Coal Co. v. Ingham, 36 
 
 Pa. 194; Stuart ^r. Clark, 3 Swan, 9; Sigler v. State, "7 Baxt. 498; Hodges 
 
 V. Williams, 95 N. C. 331; Fulmer v. Williams, 122 Pa. 191, 1 L. R A. 603. 
 *8tratton v. Currier, 81 Me. 497, 3 L. R. A. 809. 
 ^Hodges v. Williams, 95 N. C. 331. 
 *Berri/ v. Carle, 3 Me. 269; Spring v. Russell, 7 Me. 273; Wadsworth v. Smith, 
 
 11 Me. 278; Dwinel v. Barnard, 28 Me. 554; Brown v. CJiadbourne, 31 Me. 
 
 9; Treat v. Lord, 42 Me. 552; Knox v. Chaloner, 42 Me. 150; Brown v. 
 
 Black, 43 Me. 443; Dwinel v. Veazie, 44 Me. 167; Veazie v. Dwinel, 50 Me. 
 
 479; Oerrish v. Brown, 51 Me. 256; Davis v. Winslow, 51 Me. 264; Lancey 
 
 V. Clifford, 54 Me. 487; Holden v. Robinson Mfg. Co. 65 Me. 215; Lawler 
 
 V. Baring Boom Co. 56 Me. 443; Hooper v. Hobson, 57 Me. 273; Gould, 
 
 Waters, p. 194; Pope v. Kinman, 54 Cal. 3.
 
 Chap. XIX.] FLOATABLE AND PRIVATE STREAMS, 405 
 
 cannot be driven in it without traveling upon the banks, it is not 
 open to the pubKc for passage.* 
 
 The requisite vohime of water only occasionally, as the result of 
 freshets, and for brief periods, is not sufficient to make a fresh- 
 water stream navigable and prevent it from being private prop- 
 erty." The character of the smaller fresh streams, which are 
 capable of passage or of floatage at certain seasons, is a ques- 
 tion of fact.' If not declared public highways by the Legisla- 
 ture, or excluded from government surveys, and not valuable 
 for public travel and transportation, they are exclusively private 
 property." 
 
 Whether a brook is a public highway depends upon its capacity, 
 extent and importance." The fact that the banks are commonly 
 used for the purpose of towing or propelling what is floating, is 
 evidence merely of want of capacity for public use." The ques- 
 
 ^Mori-v^on v. Coleman, 87 Ala. 655, 5 L. R. A. 384; Olson v. Merrill, 42 
 "Wis. 203; Burroughs v. Whitwam, 59 Mich. 279; Munson v. Uungerford, 
 6 Barb. 265; Curtis v. Keesler, 14 Barb. 511; Guston v. Mace, 33 W. Va. 
 14, 5 L. R. A. 392; Varick v. Smith, 9 Paige, 547, 4 N. Y. Ch. L. ed. 
 811; Brotcne v. Scofidd, 8 Barb. 289; Palmer v. Mulligan, 3 Caines, 307; 
 Ex parte Jennings, 6 Cow. 518; Pierrepont v. Loveless, 72 N. Y. 211, 216; 
 Slater v. Fox, 5 Hun, 544; Moorev.Sanhorne, 2 Mich. 519; Lorman\. 
 Benson, 8 Mich. 18; Ryan v. Brown, 18 Mich. 196; Middleton v. Flat 
 River Booming Co. 27 Mich. 533; The City of Erie v. Canfield, 27 Mich. 
 479; Thunder Bay River Booming Co. v. Speedily, 31 Midi. 336, 345; Atiy- 
 Oen. V. Evart Booming Co. 34 Mich. 462; Wood v. Rice, 24 Mich. 423; 
 Scott V. Willson, 3 N. H. 321; Barron v. Davis, 4 N. H. 338; State v. Gil- 
 manton, 14 N. H. 467, 479; Tliompson v. Androscoggin River Imp. Co. 54 
 N. H. 545, 58 N. H. 108: Carter v. Thurston, 58 N. H. 104, 107; Whusler 
 V. Wilkinson, 22 Wis. 572; Wisconsin River Imp. Co. v. Lyons, 30 Wis. 61, 
 66; Sellers v. Union Lumbering Co. 39 Wis. 525; Birclay R. & Goal Co. 
 V. Ingham,, 36 Pa. 194; Llickok v. Hine, 23 Ohio St. 523; liVeise v. Smith, 
 3 Or. 445; Felger v. Robinson, 3 Or. 455; Nutter v. Gallagher (Or. June, 
 1890) 24 Pac. Rep. 250; Blood v. Nashua <& L. R. Corp. 2 Graj', 137; 
 Roice V. Granite Bridge Corp. 21 Pick. 344; Atty-Gen. v. Woods, 108 
 Mass. 436; Neaderhouser v. State, 28 Ind. 257; Exson v. McMaster, 1 Kerr 
 (N. B.) 501; Rowe v. Titus, 1 Allen (N. B.) 326; Boissonnault v. Oliva, 
 Stuart (Low. Can.) 564; Hayward v. Knapp, 23 Minn. 430; Lamprey v. 
 Nelson, 24 Minn. 304: Com. v. Charlestown, 1 Pick. 180: Irwin v. Brown 
 (Tenn. Oct. 5, 1889) 12 S. W. Rep. 340; Charlestown v. Middlesex County, 
 3 Met. 202; Gould, Waters, p. 195. 
 
 "^Morrison v. Coleman, 87 Ala. 655, 5 L. R. A. 384. 
 
 ^Rhodes v. Otis, 33 Ala. 578. 
 
 *Ellis V. Carey, 30 Ala. 725; Morrison v. Coleman, 87 Ala. 655, 5 L. R. A. 
 384. 
 
 ^Haines v. Welch, 14 Or. 319, 
 
 « Gould, Waters, p. 195. 
 
 I
 
 406 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 tion whether it is a highway is held to be a question of law for the 
 court, after the facts are determined by a juiy.' 
 
 A stream is navigable which has capacity to float rafts of lum- 
 ber, but not streams which only float single logs or planks." The 
 doctrine that a stream is navigable if of sufScient capacity to float 
 logs does not include streams of only a few miles in length, and 
 whose capacity is only temporary, and is derived from the melting 
 of snow on the mountains, and are not then floatable without a 
 large amount of human help.' In some of the States a stream 
 which is not of sufficient depth naturally for valuable floatage, 
 such as rafts, flatboats and small vessels of lighter draft than ordi- 
 nary, is not navigable." 
 
 In Rhodes v. Otis., 33 Ala. 578, the question was very elabo- 
 rately considered, Walker, Ch. J., delivering the opinion of the 
 court. After collating many authorities, the summing up is that: 
 ^'It does not appear that the public generally, or any large num- 
 ber of persons, will ever use the stream for floatage. Indeed, the 
 short distance to which the stream can be used [six or seven miles] 
 affords a strong argument that no large number of persons will 
 probably ever use it for floating timber. The stream, even below 
 the mouth of Tallahatta Creek, can only be used for floatage in 
 freshets from head water, or from back water from the Tombeck- 
 hee River. In case of freshets from head water it can be used for 
 floating rafts only for a very short time, because the creek, being 
 a very short one, runs down very soon. . . . The highest estimate 
 of the aggregate of the brief periods when it might be used for 
 the short distance for floating rafts and logs on account of freshets 
 and back water is three months. The creek is not shown to have 
 been excepted from the government surveys. Upon such evidence 
 it cannot be said that Bashi Creek is a navigable stream." * 
 
 In the case of The Daniel Ball, 77 U. S. 10 Wall. 557, 19 L. 
 
 ^ Ellis V. Carey, 30 Ala. 725; Rhodes v. Otis, 33 Ala. 578; Peters v. New Or- 
 leans, M. & G. R. Co. 56 Ala. 528; State v. 'Bell, 5 Port. (Ala.) 379; Treat 
 V. Lord, 42 Me. 552; Bryant v. Glidden, 36 Me. 36. See Wisconsin River 
 Log Driv. Asso. v. Comx,tock Lumber Co. 72 Wis, 464, 1 L. R. A. 717. 
 
 ^American River Water Co. v. Amsden, 6 Cal. 443. 
 
 ^Haines v. Hall, 17 Or. 165, 3 L. R. A. 609, and note. 
 
 ^Irwin V. Brown (Tenn. Oct. 5, 1889) 12 S. W. Rep. 340. 
 
 «See Peters v. Mw Orleans, M. & G. R. Go. 56 Ala. 528; Walker v. Allen, 72 
 Ala. 456; SulUtan v. S2)otswood, 82 Ala. 163.
 
 Chap. XIX.] FLOATABLE AND TKIVATE STKEAMS. 407 
 
 ed. 999, speaking of streams above tide-water, the court said : "A 
 different test must therefore be applied to determine the naviga- 
 bility of rivers, and that is found in their navigable capacity. 
 Those rivers must be regarded as public navigable rivers in law, 
 which are navigable in fact. And they are navigable in fact when 
 they are used, or are susceptible of being used, in their ordinary 
 condition, as highways for commerce, over which trade and travel 
 are or may be conducted in the customary modes of trade and 
 travel on water." 
 
 In Angell on "Watercourses, § 535, is this language : "All rivers 
 above the flow of tide-water are, by the common law, prima facie 
 private ; but when they are naturally of suthcient depth for valu- 
 able floatage, the public have an easement therein for the purposes 
 of transportation and commercial intercourse, and in fact they are 
 public highways by water." This doctrine is amply supported by 
 authority.* 
 
 As the result of the weight of authority, a fresh-water stream 
 above tide-water is navigable, and a public highway, when, and 
 only when, it is susceptible of being used, in ordinar}^ condition, 
 for a highway of commerce, over which there may be trade, travel, 
 transportation or valuable floatage. But where a person desiring 
 to open a way of navigation to a certain point on a navigable tide 
 slough, situated upon the land of another Avhich adjoined his prem- 
 ises, cleared away logs and brush from a gulch through which 
 flowed a small mountain stream, deepened the same and cut a 
 channel therefrom through the intervening land of the other to 
 such a point of navigation, thereby opening a watercourse between 
 his premises and said point, by means of which he was enabled to 
 float logs and small boats thereon at extreme high tides, which 
 occur but a few days during the year; and it appearing that the 
 communication so established was merely for the use and benefit 
 of himself and those who might succeed him in the ownership of 
 his premises, — such watercourse did not constitute a navigable 
 stream, in the sense and meaning of the term as legally used.'' 
 
 It is not to be understood that to be a navigable stream or pub- 
 lic highway it must be susceptible of the enumerated uses for the 
 
 ^Morgan V. King, 35 N. Y. 454; Leiois v. Coffee County, 77 Ala. 190; Olice 
 
 V. State. 86 Ala. 88, 4 L. R. A. 33. 
 ^Nutter V. QallagUr (Or. June 18, 1890) 24 Pac. Rep. 250.
 
 408 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 entire year. That a river is sometimes imnavigable cannot affect 
 its navigability at other times,' Most inland streams contain a 
 greater volume of water in winter than in summer. The precise 
 rule is that for a season, or considerable part of the year, it must 
 contain that depth of water which fits it for such transportation. 
 It excludes all those streams which have the I'equisite volume of 
 water only occasionally, as the result of freshets, and for brief 
 periods, as unnavigable and private property." 
 
 If a fresh-water stream is capable of serving an important pub- 
 lic use as a channel of commerce, it should be considered public ; 
 if only a brook, although it may serve to float down sawlogs for a 
 few days during a freshet, it is not therefore a public highway. 
 Whether it is the one or the other depends upon its capacity, ex- 
 tent and importance.* But a private unnavigable brook which 
 flows into a public navigable river, and is floatable in times of 
 high water, becomes a public thoroughfare by being publicly used 
 without objection for twenty years as an inlet for rafts.* 
 
 A non-navigable inland lake is the subject of private ownership; 
 and where it is so owned, neither the public, nor an owner of ad- 
 jacent lands whose title extends only to the margin thereof, have 
 a right to boat upon, or take fish from, its waters.' 
 
 The very definition of the third class of navigable streams shows 
 that these streams would not be included in the common-law defi- 
 nition of a navigable stream, — that is, one in which the tide ebbs 
 and flows, — nor could it come within the civil-law definition of a 
 navigable stream, which is capable of being navigated by boats or 
 lighters, and on which commerce may be carried on. These navi- 
 gable streams of the third class are generally called floatable 
 streams ; and though the public has a right to use them as a public 
 highway by floating logs and other products of forest, mines and 
 tillao'C down these streams to mills and market, yet the riparian 
 
 ^Nelson v. Leland, 63 U. S. 23 How. 48, 16 L. ed. 269. 
 
 ^Morrison v. Coleman, 87 Ala. 655, 5 L. R. A. 384. 
 
 ^Haines \. Welch, 14 Or. 319; Lawton v. Comer, 40 Fed. Rep. 480, 7 L, R. 
 
 A. 55. 
 *Stump V. McNairy, 5 Humph. 363. The only decisions tending to limit 
 
 this right of floatage are Hubbard v. Bell, 54 III. 110; Thunder Day River 
 
 Booming Co. v. Speechly, 31 Mich. 336, 343, and American River Water Co, 
 
 V. Amsden, 6 Gal. 443. 
 ^Lembeck v. Nye, 47 Ohio St. — , 8 L. R. A. 578.
 
 Chap. XIX.] FLOATABLE AND PIllVATK STKEAMS. iUi) 
 
 owners along such streams own tlie bed of them as well as their 
 banks, so differing in some States from other navigable streams. 
 As respects the right of a land owner to such streams, it is to be 
 observed that, wliile he has a property in the streams, he has no 
 property in the water itself, aside from that which is necessary for 
 the gratification of his natural or ordinary wants. 
 
 It is a well-recognized rule that a riparian proprietor m?ij,ju?'e 
 naiurcB, divert water from a stream for domestic purposes andfoi* 
 the irrigation of his land ; but to what extent he may do the lat- 
 ter in any particular case depends upon whether it is reasonable, 
 having due regard to the condition and circumstances of other 
 proprietors on the stream. He should not so divert it as to de- 
 stroy or materially diminish or impair the application of the water 
 by other proprietors.' He must allow it to pass on to the inferior 
 heritors.'' 
 
 All the rest of the water is ^'■piiblici juris i''^ aqua ciirrit et debet 
 currere ut solehat. The right of enjoying this flow without dis- 
 turbance, interference or natural diminution by any other pro- 
 prietor is natural and is an incident of property in the land, like 
 the right the proprietor has to enjoy the land itself without mo- 
 lestation from his neighbors. 
 
 A riparian proprietor upon a natural stream should use 
 the water only in such a manner that every riparian proprietor 
 further down the stream may have the use and enjoyment of it 
 substantially according to its natural flow, subject to such inter- 
 ruption as is necessary and unavoidable by the reasonable and 
 proper use of the water in the stream above.' 
 
 The right of property is in the right to use the flow, and not in 
 the specific water. Each proprietor may make any use of the 
 water flowing over his premises which does not essentially or ma- 
 terially diminish the quantity, corrupt the quality or detain it so 
 as to deprive other proprietors or the public of a fair and reason- 
 
 'Washb. Easem. 240; Miner v. Gilmour, 12 Moore, P. C. 155; Elliot v. Fitch- 
 burg R. Co. 10 Cush. 191; Embrey v. Owen, 6 Exch. 353; MemHf/er'» 
 App. 109 Pa. 285, 1 Cent. Rep. 424; Gaitooodv. New York Cent. & H. 
 R. R. Co. 83 N. Y. 404, 38 Am. Rep. 452; Radclif v. Brooklyn, 4 N. Y. 
 199; Campbell v. Seaman, 63 N. Y. 568. 
 
 *Van Hoesenv. Coventry, 10 Barb. 521; Swift v. Ooodrich, 70 Cal. 103. 
 
 'Chandler v. JJowland, 7 Gray, 348; Ware v. Allen, 140 Mass. 513. 1 New 
 Eng. Rep. 733. See Burk v. Simonson, 104 Ind. 173, 1 West. Rep. 190.
 
 410 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 able participation in its benefits.' This rule does not require 
 that there shall be no diminution, abstraction or detention by the 
 upper or lower riparian proprietor, as that would be to prevent all 
 reasonable use of it. The upper owner cannot vary the flow of the 
 stream so as to cause injury to the lower owner by any alteration 
 in the conformation of his land, as by removing a ledge of rock.* 
 
 A riparian owner may grant a part of his estate, not abutting 
 on the stream, and, as appurtenant thereto, a right to draw water 
 from the stream through his remaining land ; and for any diver- 
 sion of the natural flow of the stream disturbing such right, the 
 grantee may maintain an action.' But he cannot authorize, as 
 against a lower proprietor, a company to take water from the 
 stream, to be conducted to a distance and sold.^ The riparian 
 proprietor on a non-tidal navigable stream has all the rights of a 
 riparian owner, not inconsistent with the public easement.' 
 
 What is' a reasonable use of water by an upper riparian owner 
 is a question of fact depending upon the circumstances of each 
 particular case." The size and capacity of the stream are to be 
 considered.^ The diversion of the water of a stream from an- 
 other's land for drainage is not a lawful or reasonable use of the 
 right to the usufruct of the water.* The accustomed course of a 
 natural stream which a riparian owner is entitled to have preserved 
 is the natural and apparently permanent course existing when the 
 right is asserted or called in question.' 
 
 Each riparian owner is entitled to a reasonable use of the water 
 for domestic, agricultural and manufacturing purposes, so far as 
 it is reasonable, conformable to the usages and wants of the com- 
 munity, and having regard to the progress of improvement in hy- 
 draulic works, and not inconsistent with a like reasonable use 
 
 ^Ulbricht V. Eufaula Water Co. 86 Ala. 587; Rindge v. Sargent, 64 N. H. 
 
 294, 4 New Eng. Rep. 523; Race v. Ward. 30 Eng. L. & Eq. 187; Johnson 
 
 V. Jordan, 3 Met. 239, 37 Am. Dec. 85; Tyler v. Wilkinson, 'i:M-Ason, 397; 
 
 Woodin V. Wentworth, 57 Mich. 278. 
 ^Grani v. Kuglar, 81 Ga. 637, 3 L. R. A. 606. 
 ^St. Anthony Falls Water-Poioer Go. v. Minneapolis, 41 Mian. 270. 
 * ^Heilbron v. Fowler Switch Canal Co. 75 Cal. 426. 
 ^Heilbron v. 76 Land & Water Co. 80 Cal. 189. 
 •> Weissv. Oregon Iron & S. Go. 13 Or. 496. 
 ^Pattisonv. Richards, 22 Barb. 146. 
 « Withers V. Purchase, 60 L. T. N. S. 819, 40 Alb. L. ,T. 214: Slurr v. Beck, 
 
 133 U. S. 541, 33 L. ed. 761.
 
 ■Ohap. XIX.] FLOATABLE AND PRIVATE STREAMS. 411 
 
 by tlie other proprietors of land on the same stream above and 
 below.' One who obtains from another, who has the right to con- 
 duct through a natural stream waters artificially carried to it, a 
 license to remove obstructions in the stream and to turn water 
 into it for his own use, is not entitled to take out more water than 
 he turns into it, to the prejudice of the rights of the other party, 
 who is a lower owner.' 
 
 A riparian proprietor of an inland non-navigable lake is of right 
 •entitled to the use of the water therein for domestic and agricul- 
 tural purposes connected with the adjacent land upon which he 
 may reside or which he may be engaged in cultivating.' 
 
 The respective rights on such floatable streams, of the public 
 :and the riparian owners, are well stated in Lancey v. Clifford^ 54 
 Me. 487, 92 Am. Dec. 5G1. Dickerson, ./., in delivering the opin- 
 ion, says that a stream which, in its natural condition, is capable 
 of being used for floating logs, lumber and rafts, is subject to 
 public use as a highway, though it be private property and not 
 strictly navigable. The right of the public, however, must be 
 exercised in a reasonable manner, since such persons have an equal 
 right with every other person to its enjoyment, and the enjoyment 
 of it by one necessarily, to a certain extent, interferes with its 
 exercise by another. What constitutes reasonable use by the pub- 
 lic depends upon the circumstances of each particular case, as the 
 occasions for its use are so numerous and diverse that no positive 
 rule can be laid down to regulate it in every instance with any- 
 thing like exact precision. Any stream is navigable on whose 
 ■waters logs or timbers can be floated to market, and they are pub- 
 lic highways for that purpose, and it is not necessary that they Ije 
 navigable the whole vear to constitute them such. If at hit'li 
 water they can be used for floating timber, then they are naviga- 
 ble, and the question of their navigability is a question of fact to 
 be determined, as any other question of fact, by a jury. Any 
 stream in which logs will go by force of the water is navigable. 
 
 ' Zflbncht V. Eufaula Water Co. 86 Ala. 587; Cai-y v. Daniels, b Met. 477. 
 
 ^ Paige v. Rjcky Ford Canal & Inig. Co. 83 Cal. 86. 
 
 ^Lemheck v. Isye, 47 Ohio St. , 8 L. R. A. 578. See Dumont v. Kellogg, 
 
 29 Mich. 425, to the point tliat each riparian proprietor is allowed a rea- 
 sonable use of the water; also Dilling v. Murray, 6 Ind. 'i2Q; ^'ewhall v. Ire- 
 son, 8 Cush. 595, 54 Am. Dec. 690.
 
 412 IMPOSED DUTIES, PERSONAL. [Part II, 
 
 The same doctrine is asserted in Shaw v. Oswego Iron Go.^ 10 Or, 
 371. JS'umerous other authorities are to the same effect.* 
 
 Tlie various purposes for which such a highway is used by the- 
 public, wliether for transporting merchandise, rafting, driving,, 
 booming logs or securing them at the mill, if necessary, require so 
 much space as tempoi'arily to obstruct the way ; but if parties so 
 conduct themselves in their business as to discommode others as 
 little as is reasonably practicable, the law holds them harmless. 
 If the rule of law was otherwise, the right of way could not iu 
 many cases be available for any useful purpose.^ 
 
 A river which is floatable only — floatable because capable of 
 valuable use in bearing the products of the forests to markets or 
 mills — is the least important of the classes of streams called navi- 
 gable. In such streams the public rights are not to the same ex- 
 tent superior to private rights as in rivers capable of more unre- 
 stricted navigation. If a stream is not susceptible of valuable use 
 to the public for floatable purposes without erections for raising 
 the head, it cannot legally be deemed a public stream, even though 
 it might easily be converted into a floatable stream by artificial 
 contrivances.' The log driver takes the waters as they run, and 
 the bed over which they flow, as nature provides. Nor has any 
 person a right, unless upon his own land, or under legislative grant, 
 to remove natural obstructions from the bed of a river in order to- 
 improve its navigation. The riparian proprietor owns the bed of 
 the river to the middle of the stream, and he owns all the rocks and 
 natural barriers in it. He owns all but the public right of passage, 
 but this right does not include any right to meddle with the rocks 
 or soil in the bed of the river.* The owner may maintain trespass 
 quare dausum for an unlawful invasion of land covered by water.^ 
 
 ^Collins V. Howard, 65 N. H. ; Gaston v. Mace, 33 W. Va. 14, 5 L. R. A. 
 
 393; Brown v. Chadbourne, 31 Me. 9; Olson y. Merrill, 43 Wis. 203; Mor- 
 gan V. King, 35 N. Y. 454, 30 Barb. 1; Hickok v. Mine, 23 Ohio St. 523; 
 Whisler v. Wilkinson, 23 Wis. 573; Sellers v. Union Lumbering Co. 39 
 Wis. 525; Holden v. Robinson Mfg. Co. 65 Me. 215; Gerrish v. Brown, 51 
 Me. 256. 
 
 ^Broion v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641; Davis v. Winslow, 51 
 Me. 264, 81 Am. Dec. 573. 
 
 ^Wadsworth v. Smith, 11 Me. 278; Brown v. Chadbourne, 31 Me. 9, 50 Am. 
 Dec. 641; Treat v. Lord, 43 Me. 553. 
 
 *June V. Pureell, 36 Ohio St. 396; Ross v. Faust, 54 Ind. 471; Watson v. Pe- 
 ters, 26 Mich. 508; Braxon v. Bressler, 64 111. 488. 
 
 ^■Morris Canal & Bkg_. Co. v. Jersey City, 26 N. J. Eq. 294; Walker v. Shep- 
 drdson, 4 Wis. 495; Moor v. Veazie, 31 Me. 360.
 
 Chap. XIX.] FLOATABLE AND PRIVATE STREAMS. 413 
 
 Ice formed upon a floatable fresh-water stream is the property 
 of the riparian proprietors.' 
 
 In addition to his ownership the structures of the mill owner 
 are legalized and protected by the statutes of the State. For the 
 sake of the gain which the public derive through the use of his 
 mills, a public franchise is granted him, authorizing him to build 
 dams and erect mills and to raise the head of water for his use, 
 which water becomes his property, and one who coasts waste into 
 his pond to his injury is liable therefor.' Unless a log owner is 
 relieved by statute, he will be liable if he unnecessarily incumbers 
 the pond of a mill owner with his, logs, his right being one of pas- 
 sage, not of rest.^ 
 
 The owner of soil over which a floatable stream, which is not 
 technically navigable, passes, may build a dam across it and erect 
 a mill thereon, provided he furnishes convenient and suitable 
 sluices or passageways for the public by or through his erections. 
 In this way both rights may be exercised without special prejudice 
 or inconvenience. To give either absolute prerogative, would be 
 destructive to both. The rights, therefore, of each must be so ex- 
 ercised as not unnecessarily or unreasonably to interefere with or 
 ■obstruct the rights of the other.* 
 
 If the channel of a floatable stream is changed or deepened by 
 riparian proprietors for the purpose of making its navigation less 
 difiicult, any person using the stream has the benefit of the im- 
 provements ; but where the mill owner has not attempted such 
 improvements, the log owner is not entitled to avail himself of the 
 reserved water in getting over or past the dam, provided the flow 
 of the natural stream is left unchanged. As the log owner cannot 
 •erect dams to create a head for facilities in the driving of the logs 
 without the land owner's consent, no more can he impress into his 
 service the use of dams lawfully erected for other useful purposes 
 by other men. As he cannot remove or interfere with the natural 
 obstructions to the riparian owner's injury, he cannot Intermeddle 
 
 ^Washington Ice Co. v. SJwrtall, 101 111. 46; Mill River Woolen Mfg. Co. v. 
 
 Smith, 34 Conn. 462; Paine v. Woods, 108 Mass. 173. See 19 Am. L. Reg. 
 
 N. S. 337, 345. 
 ^Dwinel v. Veazie, 44 M(!. 167. See Hill v. Smith, 27 Cal. 476, 32 Cal. 166. 
 'Brown v. Black, 43 Me. 443. 
 *Lancey v. Clifford, 54 Me. 487; Bmnel v. Veazie, 50 Me. 479.
 
 414 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 with legally authorized artificial obstructions, which do not deprive- 
 him, in any respect, of the ordinary and natural flow. The only 
 obligation which the law lays upon the mill owner is not to injure 
 the river passage. He is not required to make it better. The 
 mill owner is entitled to the water for working his mill. If others 
 are entitled to a reasonable use of it, for the purpose of floatage, 
 he is deprived of his property without compensation. The doc- 
 trine of reasonable use does not apply when the river is not natu- 
 rally floatable ; but it does apply when it is naturally floatable or 
 log navigable, when both parties can use the natural flow and de- 
 sire to use it at the same time. In rivers which are capable of 
 more extended navigation, the public right extends equally to all 
 navigable portions of the river. But while the right of floatage- 
 in such streams is not of such paramount character as to prevent 
 the erection of dams, bridges and flumes and the like, which 
 do not prevent a reasonable chance for public passage, still the 
 right of passage is the dominant right, because it is a right that 
 cannot be exercised satisfactorily unless the other right tempo- 
 rarily yields to it ; but its use must not be usurping, excessive or 
 unreasonable.* 
 
 The same principle in regard to use by the riparian proprietors 
 applies as to the public use of the stream. As a highway, it must 
 be reasonable use, and not inconsistent with the reasonable enjoy- 
 ment of the stream by others who have an equal right to its use. 
 Eeasonable use is the touchstone for determining " the rights of 
 the respective parties." Thus, in considering this subject, we find 
 the public right of way over the stream, and the land owner's right 
 of soil under it, and his right to use its flow, are the same. TJie 
 rio-hts of both these parties are necessary for the purposes of com- 
 merce, agriculture and manufacture. The products of the forest 
 would be of little value if the riparian proprietors had no right in 
 the class of streams we are considering to use the water by dams, 
 and erect mills for the manufacture of these products into lumber. 
 The right to use the water of such streams for milling purposes is 
 as necessary as the right of transportation. Indeed, it is this con- 
 sideration that often imparts the chief value to the estate of the 
 riparian proprietors, and without which it would have no value 
 
 ^Pearmn v. Rolfe, 76 Me. 380; A. C. Conn Co. v. Little 8. L. Mfg. Co. 74 
 Wis. 652.
 
 Chap. XIX.] FLOATABLE AND PRIVATE STREAMS. 41.> 
 
 whatever in many instances. Bat the erection of a dam across a 
 floatable stream, without making or keeping suitable sluices for 
 the passage around or through such dam of logs floating in the 
 stream, is a nuisance. 
 
 This was held in Brown v. Chadhourne^ 31 Me. 9, 50 Am. Dec. 
 641, which was a case in which an individual recovered against the 
 riparian owners of land along a floatable stream, not properly speak- 
 ing navigable, for maintaining a dam across such stream without 
 maintaining suitable sluices around or through it for the passage 
 of logs. It was an action on the case for erecting and maintaining 
 a dam across a stream called " Little River, " and obstructing the 
 passage of the water and the plaintiffs' logs. The river was about 
 three miles in length, running from a lake to tide-water. It was- 
 from nine feet to four rods in width, and had been used many 
 years for floating logs and rafts, and sometimes boats. "Within 
 twenty years, dams and mills had been erected upon it. The 
 plaintiffs disclaimed the right to recover upon the ground of pre- 
 scription or use, but claimed it because the stream was a public one 
 in its natural state. The jury were instructed that, it being a fresh- 
 water stream, the presumption was that it was private property, and 
 tiie burden was on the plaintiffs to establish the contrary by satisfac- 
 tory proof that it was a navigable or floatable river, and in its nat- 
 ural condition capable of being used for running logs, the rule 
 of the common law, that riparian proprietors own to the center of 
 fresh-water rivers, having been adopted in that State.' The first 
 question which was considered in the case was : It being conceded 
 that the bed of the river belongs to the owners of the land on 
 either side, can a right to use the waters be obtained unless that 
 use has continued twenty years, the ordinary length of time for 
 the acquisition of an easement ? 
 
 Berrxj v. Carle, 3 Me. 269 ; Shaw v. Crawford, 10 Johns. 236, 
 and Scott v. Will-son, 3 N. H. 321, — in which the right is consid- 
 ered as dependent on long usage, are cited. 
 
 The opinion quotes what is laid down by Zo?'d Hale in his cele- 
 brated treatise De Jure Maris, above stated, and makes on it this 
 comment : " He makes no mention of prescription or length of 
 
 ' See Berri/ v. Carle, 3 Me. 2Q9\ Spring v. Russell, 7 Me. 273. See also ante, p. 
 389, note 2.
 
 416 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 time bj which the riglit is obtained, but of the actual use in fact 
 as indicating public rivers." 
 
 In Wadsworth v. Smith, 11 Me. 278, 26 Am. Dec. 525, the doc- 
 trine is stated that when a stream is naturally of sufScient size to 
 float boats or mill logs, the public has a right to the free use for 
 that purpose. But such little streams or rivers as are not floatable, 
 that cannot in their natural state be used for the carriage of boats, 
 rafts or other property, are wholly and absolutely private, not sub- 
 ject to the servitude of the public interest, not to be regarded as 
 public highways by water, because they are not susceptible of use 
 as a common passage for the public. The same principle was 
 stated by Miller, Ch. J., in Spring v. Russell, 7 Me. 273, and is 
 also recognized in Angell on Tide Waters, 75, and Palmer v. Mul- 
 ligan, 3 Cai. 307, 2 Am. Dec. 270. 
 
 The distinguishing test between those rivers which are entirely 
 private property, and those which are private property subject to 
 the public use and enjoyment, consists in the fact whether they 
 are susceptible or not of use as a common passage for the public' 
 The right of passage and of transportation upon rivers not strictly 
 navigable belongs to the public by the principles of the common 
 law." This subject was very fully considered in Esson v. McMas- 
 ter, 1 Kerr (N". B.) 501, in the Province of jN^ew Brunswick, de- 
 ciding the rule of law as it is stated to be in Wadsworth v. Smith, 
 11 Me. 278, 26 Am. Dec. 525. The case of Bowe v. Titus, 1 
 Allen (ISr. B.) 326, in that Province was decided upon the same 
 principle. See also Adams v. Pease, 2 Conn. 481; Carson v. 
 Blazer, 2 Binn. 475, 4 Am. Dec. 463. 
 
 A stream could be subjected to public servitude by long use, 
 were it not that there are many large rivers in newly settled States 
 of which the public would be deprived of the use, although nature 
 has plainly declared such rivers to be public highways. The true 
 test, therefore, to be applied in such cases, is whether a stream is 
 inherently in its nature capable of being used for the purpose of 
 commerce for the floating of vessels, boats, rafts or logs. When a 
 stream possesses such a character, then the easement exists, leaving 
 
 'Per Spence, Ch. J., in People v. Plait, 17 Johns. 216, 8 Am. Dec. 382; 
 
 Hooker v. Cummings, 20 Johns. 91, 11 Am. Dec. 249. 
 «Per Parker, Ch. J., in Com. v. Chapin, 5 Pick. 199, 16 Am. Dec. 386.
 
 Chap. XIX.] FLOATABLE AND PRIVATE STREAMS. 417 
 
 to the owner of the bed all other modes of use not inconsistent 
 with it. For a riparian owner cannot acquire by prescriptive use 
 a riglit which will defeat or destroy the right of the public in a 
 stream used for floating logs," and the rights of pul)lic use have 
 been in some States carried so far as to place fresh-water streams 
 on the same ground as those in which the tide ebbs and flows, and 
 which alone are considered strictly navigable at common law, and 
 to exclude the owners of the banks and beds from all property in 
 them.'' In certain States of the Union such a rule lias been estab- 
 lished by judicial decisions, and, in others, by legislative Acts. 
 None of the authorities require the stream to possess the quality 
 of being capable of such use during the whole year. A distin- 
 guishing criterion consists in its fltness to answer the wants of 
 those whose business requires its use. Its perfect adaptation to 
 such use may not exist at all times, although the right to it may 
 continue and be exercised wdienever an opportunity occurs. In 
 many rivers where the tide ebbs and flows, the public are deprived 
 of their use for navigation during the reflux of their waters. A 
 way over which one has a right to pass may be periodically cov- 
 ered with water. In hmh northern latitudes most fresh-water 
 rivers are frozen over during several months of the year. Even 
 some tide-waters are incapable of any beneflcial use for purposes 
 of commerce in the season of winter, owing to the accumulation of 
 ice. The lapse of time during which a dam has been used across 
 a floatable stream by a riparian owner can give no prescriptive 
 right to such use as against and to the prejudice of the public use, 
 though it might give a right to keep up such dam as against an- 
 other riparian owner by prescription. If the law was otherwise, 
 in many parts of the United States, the public would necessarily 
 lose the use of many floatable streams over which riparian owners 
 have kept up dams for more than twenty years before the public 
 had any occasion to float logs down them, because the batiks of tlic 
 stream remained unsettled and the timber on such streams there- 
 fore entirely uncut. The riparian owner of such dam could never 
 acquire by prescription an exclusive right to the use of such stream 
 as if it were a private stream as against the public* 
 
 ^Collins V. Howard, 65 N. H. . 
 
 « ''Gaston v. Mace, 33 W. Va. 14, 5 L. R. A. 393. 
 
 27
 
 ilS IMPOSED DUTIES, PERSONAL. [Part II. 
 
 Section 46. — Basements in Rivers, Streams and 
 Ponds Acquired hy Grant.— Parol License. 
 
 A riparian owner upon a technically navigable stream — not 
 simply a floatable stream — lias no right, without legislative con- 
 sent, to build a clam across snch stream for any purpose.' An 
 express grant to an individual by the government, of a right to- 
 erect a dam and flow back water upon the land of the riparian 
 owners, must be shown to have been sanctioned by law or custom 
 of that government, and will not be presumed." But such right 
 being shown to be legal, a licensee from the State of the right to 
 use the waters of a great pond will be protected in such right as 
 against one who is removing such water without authority, espec- 
 ially where the licensee has erected valuable mills, and has had 
 the exclusive use and control of the waters in their operation for 
 a period of sixty-five years.* 
 
 By the grant of anything co7iceditur, et id sine quo res ipsa 
 haberi noii del It, as, if one grants his trees, the grantee may enter 
 upon his lands for the cutting down and carrying them away.* 
 By a grant of a messuage cum jpertinentiis, a conduit, with water 
 pipes to it, enjoyed any time, will pass.* 
 
 The doctrine is too familiar to justify further elaboration, that 
 when the owner of an estate, during such ownership, has by arti- 
 ficial arrangements made one part subservient to the other, thus- 
 enhancing the value of one by burdening the other, the convey- 
 ance of that the value of which is thus enhanced will carry the 
 right to an easement in the other to the extent necessary to the 
 enjoyment of that granted in the same condition in which it wa& 
 enjoyed before.* Where the grantor had ])y the previous use 
 imposed a burden on one part of his estate, in favor of the other, 
 the right to continue this burden was one which he had the power 
 
 ^Green Bay <& M. Canal Co. v. Kmiknuna Water-Poxcer Go. 70 Wis. 653;. 
 
 Aldioorth v. Z?//i?i ( Mass. Jaa. 9, 1891) 10 L. R. A. 210. 
 ^Rhodes V. Whitehead, 27 Tex. 304. 
 ^Proprietors of Mills v. Braiatree Water Supply Co. 149 Mass. 478, 4 L. R. A. 
 
 272. 
 ^Comyn, Dig. vol. 4, title Grant, E, 11, 
 
 ^Nicholas \. Chamberlain, Cro. Jac.^121; ArcJier v. Pennett, 1 Lev. 131. 
 ^Ottv. Kreiter, 110 Pa. 370, 1 Cent. Rep. 391; John Hancock Mut. Ins. Co, 
 
 V. Patterson, 103 lad. 582, 1 West. Rep, 124.
 
 Chap. XIX.] EASEMENTS ACQUIRED BY GKANT. -iTJ 
 
 to cjrant. It passed with his grant of the mill and the water rights 
 appurtenant to it.' 
 
 In a case where water rights are granted without being other- 
 wise specifically defined, such rights are measured and limited, as 
 against the grantor, by the extent to which they were designed to 
 be used and had actually been made available for and applied to 
 the use; and the practical tests applicable to a mill-dam thus granted 
 are the height at which the water has been usually and ordinarily 
 maintained at the heart of the dam, without regard to the perma- 
 nency of the means employed to raise it, and also the distance the 
 water is set back during the ordinary stages of the stream.' 
 
 Mr. Angell, in his work on Watercourses, summarizes the result of 
 the authorities as applied to rights acquired by prescription in the 
 following language : " Where the owners of a dam have, for a 
 period of twenty years, made use of flash boards on their dam for 
 the purpose of retaining the water during periods of the year 
 when the water is low, they may acquire a right to substitute for 
 such flash boards a permanent structure, so long as the height of 
 the dam is not raised thereby, and no injury is done." As against 
 the grantor of a water right, a rule not less favorable to the 
 grantee than that above stated should obtain where an extension 
 of such a mill-dam, necessary to close up an artificial channel, tends 
 to the better security of the dam, without injury to or invasion of 
 the property subservient to the easement. The right to make such 
 extension results from the terms of the grant, and whatever rights 
 the grantee of the mill-dam might have asserted against his grant- 
 or, he may assert against such grantor's remote grantee.' 
 
 A grant of a mill site includes, as an appurtenance, a right to 
 have the water flow off through the whole extent of a race-way, 
 extending into other lands of the grantor.^ By the grant of mills, 
 
 ^ Green V. Collins, 86 N. Y. 246. 
 
 ^Cowellv. Thayer, 5 Met. 253; Ray v. Fletcher, 12 Cush. 200; Daniels v. Cit- 
 izens Sav. Inst. 127 Alass. 534; Voter v. ILMs, 69 Me. 19; Lary v. Arnett^ 
 33 Pa. 169; Hynds v. Shults, 39 Barb. 600; Ott v. Kreiter, 110 Pa. 370. 1 
 Cent. Rep. 391; Marcly v. Schults, 29 N. Y. 346; Ang. Watercourses, 
 §380. 
 
 *Laminott v. Ewers, 106 Ind. 310, 4 West. Rep. 553. 
 
 *New Ipswich W. L. Factory v. Batchelder, 3 N. H. 190. See Johnson v. 
 Jordan, 2 Met. 234; Leonard v. White, 7 Mass. 8; Blaine v. Chambers, 
 1 Serg. & R. 169; Pickering v. Stopler, 5 Serg. & R. 107: United States v. 
 Appleton, 1 Sumn. 492; Bobbins v. Barnes, Hob. 131; Whalley v. Tlwmp-
 
 420 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 the water, flood-gates and the like that are of necessary use to the 
 mill pass.' 
 
 If the owner of land makes one part subservient to the other, 
 as by the construction of a mill-dam, the conveyance of the latter 
 part will carry the right of an easement in the other, to the extent 
 necessarj' to the enjoyment in the same condition in which it was 
 enjoyed before." 
 
 A deed of land as a mill site, with the right, as appurtenant 
 thereto, of constructing a canal through the grantor's land, and of 
 drawing water from a pond for the use of a mill on the land con- 
 veyed, grants by implication the right to maintain the pond, not- 
 withstanding the provision that no rights, privileges, easements 
 or appurtenances shall pass by intendment or implication.' 
 
 Where it is apparent that a grantor intended to dispose of the 
 entire mill property conveyed, the use of the phrase, " all my 
 water privileges," including the various mills and manufactories 
 connected therewith, without a description by metes and bounds, 
 includes a dam and pond which are an essential part of the privi- 
 leges and property.* 
 
 An agreement between lot owners on the west side and owning 
 to the thread of a stream, to share the water-power appurtenant 
 to lots on the east side 1)ought by them in common among them- 
 selves in certain proportions, to be used on the west-side lots, no 
 one conveying to any other any interest in his independent estate 
 in the west-side lots, although binding as a personal covenant upon 
 any of such owners who may subsequently purchase lots on the 
 east side of the stream, to share the water-power thus acquired 
 with the other west-side owners, yet, not being a covenant run- 
 ning with the land, does not bind their grantees of east-side lots, 
 who were not parties and did not purchase subject to the agree- 
 ment, or strip the east-side lots of their natural water right." 
 
 An instrument in form a conveyance of a fee, whereby a grant- 
 sow., 1 Bos. & P. 374, note; Grant v. Chase, 17 Mass. 443; HewlinsY. Ship- 
 pam, 7 Dow. & Ry. 783, 5 Barn. & C. 231; Shiiry v. Figgott, 3 Bulst. 339; 
 StricMer v. Todd, 10 Serg. & R. 63. 
 
 'Shepherd's Touchstone, 89. 
 
 ^Lammottv. Ewers, 106 Ind. 310, 4 West. Rep. 553. 
 
 ^St. Anthony Falls Water-Power Co. v. Minneapolis, 41 Minn. 270. 
 
 *Nye V. Eoyle, 120 N. Y. 195. 
 
 ^Lawrence v. Whitney, 115 N. Y. 410. 5 L. R. A. 417.
 
 Chap. XIX.] EASEMENTS ACQUIRED BY GKANT. 421 
 
 or, in consideration of an annnal rent, leases to a mill owner the 
 right to flow certain lands so long as he shall see fit, is a grant of 
 an easement and not a lease from year to year.' But mere parol 
 encouragement to establish a mill for the public convenience, given 
 bj upper riparian owners, is too vague and indefinite to constitute 
 a license to flow their lands by a dam." But after the purchase 
 of a mill site and the completion of a dam by a licensee of the 
 right to flow the lands of another, it is too late for the latter to 
 revoke the license.' 
 
 In those courts which deny that a parol license, and acts done 
 under it, upon the land of the licensor, will estop the licensor, 
 this result will not follow.* Thus, in Stevens v. Stevens, 11 Met. 
 251, the defendants' grantor erected a dam on the land of plain- 
 tiffs' grantor. The plaintiffs, subsequently acquiring title to the 
 land, notified the defendants to remove it, and, the notice being 
 disregarded, commenced its removal. While the plaintiffs were 
 thus engaged, the defendants entered and restored so much of the 
 dam as had been removed, making some additions to it. A bill 
 in equity was then brought to have the dam abated as a nuisance. 
 It was held that while, for several years, the defendants had en- 
 joyed the privileges allowed by their license, they were not re- 
 sponsible for any acts done by them in jDursuance of said license 
 and permission, before tlie same was countermanded by the plain- 
 tiffs ; that they were not, therefore, liable to pay any expenses for 
 the removal of the old dam, although the same might be removed 
 by the plaintiffs. So far as they had built a new dam or repaired 
 and made addition to the old one. after the license was counter- 
 manded, the defendants were held liable and the plaintiffs were 
 deemed entitled to have the same abated at the expense of defend- 
 ants. 
 
 The grant of an easement for one jDurpose will not prevent the 
 acquirement by prescription of an additional easement exercised 
 in connection with the one granted.' 
 
 ^Tuttle V. Harry, 56 Conn. 194, 6 New Eng. Rep. 483. 
 
 '^Hines v. Jarrett, 26 S. C. 480. 
 
 ^OlmHtead v. Abbott, 61 Vt. 281. See ante, pp. 182-184, and notes. 
 
 *See ante, p. 187, notes 2, 3. 
 
 ^WJieaUey v. Ckrisman, 24 Pa. 298; Clmsted v. Loomis, 9 N. Y. 423.
 
 422 IMPOSED DUTIES, PERSONAL. [Part 11. 
 
 Section 47. — Where It is Uncertain ivhether the 
 Grant Limits the Quantity of Water or the 
 Class of Machinery, the Limit will he Applied 
 to the Water. 
 
 A grantee of a fixed supply of water is not obliged to reduce 
 the quantity because improved modern appliances can give equal 
 efficiency to a much smaller volume.' Parties have the right to 
 run their factory as many hours a day as they consider proper, 
 where they have a grant of water for the purposes of their factory, 
 with no limitation therein upon the number of hours per day in 
 which they can run the factory.* 
 
 If it is doubtful from the terms of a grant whether the kind of 
 mill or particular machinery mentioned therein, for which water 
 is to be furnished, indicates the quantity of water and measures 
 the extent of the power intended to be conveyed, or is referred to 
 as a limit of the use to the particular kind of mill or specified ma- 
 chinery, the former construction will be favored. Thus, a grant 
 of a certain water privilege for the purpose of propelling a factory 
 and its machinery and appurtenances, the building to be of a cer- 
 tain size, with necessary appurtenances and machiner}'-, will be 
 construed to measure the quantity of water, and will not limit the 
 use of water to carry only such machinery as may be in the main 
 building, if some of the machinery is in an annex and no more 
 power is required to propel it than if it were in the main build- 
 ing.^ So the words of a grant in a conveyance of a grist-mill, 
 with a right to use the waters as then used, limit the quantity of 
 the water, but do not restrict the method by which it is to be ap- 
 plied.* Nor will a grant of water, with the monopoly giving the 
 exclusive privilege of grinding grain at a grist-mill, restrain the 
 grantee from using the water for other purposes.^ 
 
 Where a grantor owning all the water-power on both sides of a 
 stream conveys a saw-mill thereon, "with the right of use of all 
 the water not necessary in driving the wheel, or its equal, now 
 used to carry the machinery in the shingle-mill, meaning to con- 
 
 ^HartweU v. Mutual L. Ins. Co. 50 Hun, 497. 
 
 2 ^Garleton Mills Go. v. Silver, 82 Me. 215, 8 L. R. A. 440. 
 
 '^Terry v. Smith, 47 Hun, 333. 
 
 ^Hartwdlv. Mutual L. Ins. Co. 50 Hun, 497.
 
 Chap. XIX.] GRANT LIMITING USE OF WATER. 423 
 
 vey a right to all the surphis of water not required for the shingle- 
 mill or other equal machinerj;" and the shingle-mill contains va- 
 rious other machinery besides the shingle-machine, — the use is not 
 confined to the specific purpose of driving that machine.' 
 
 Under such deed, the owner of the shingle-mill may lawfully put 
 into it a board-saw, provided tlie wheel consumes no more water 
 than was previously used, even if the owner of the saw-mill there- 
 by loses all hispatrons." So a grant to a riparian proprietor of 
 the right to draw a certain quantity of water from the grantor's 
 pond each day, and no more, confers no right to have the water 
 held back so that there may at all times be enough in the pond to 
 supply the given amount. The grantor, however, will not be 
 permitted to unreasonably let down the water for his own conven- 
 ience, and thereby render nugatory the right of his grantees to 
 obtain water." And a provision in a deed granting lower ripa- 
 rian rights, requiring the grantee to contribute towards the ex- 
 pense of maintaining the dam, flume and gate at the outlet of the 
 reservoir, does not alone give him the right to have the water 
 held back for his benefit." 
 
 The following rule for computing the quantity of water dis- 
 charged through spouts under a given head has been adopted by 
 the courts, viz.: Multiply the square root of the number of feet 
 in the head by 8,025, and multiply this result by the square feet 
 of the area of the discharge, and the result is the cubic feet of 
 discharge per second.^ 
 
 A conveyance of a water-power, describing the water conveyed 
 as sufficient to run a grist-mill and a cotton or woolen factory, 
 *' and for those purposes only," limits the use, and not the quan- 
 tity, of the water; ° and the grant to a lower riparian proprietor, of 
 the right to have a quantity of water come down the stream suffi- 
 cient to run two paper-engines as used in the grantor's paper-mill, 
 does not include a right to the amount required to run the entire 
 mill, including all the other machinery therein, although it is only 
 such as is necessary for a mill running two engines, where the 
 engines were run by a separate w^ator-wheel with which no other 
 
 I 2 Warner v. Cushman, 82 Me. 168. 
 
 ^* Whitney v. Wheeler Cotton Mills, 151 Mass. 396, 7 L. R. A. 613. 
 
 ^Hartwell v. Mutual L. Ins. Go. 50 Hua, 497. 
 
 * Clement v. Gould, 61 Vt. 573.
 
 424 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 machinery was connected/ And the grantee of a lower privi- 
 lege gets no right to the use of a reservoir owned by the grantor, 
 unless it is so specified in the deed, even although necessary for 
 the beneficial use of his mill/ 
 
 To the lower mill owners, the upper grantee of the water- 
 power is bound to send down the quantity of water called for by 
 their several deeds, without reference to the convenience of oper- 
 ating its own mills ; though this duty would probably be suspend- 
 ed in case a temporary stoppage should become necessary for 
 repairs, or other emergency, outside of the usual course of the 
 operation of the mill/ 
 
 Section 48. — Easements in Flowing Water Ac- 
 quired hy Prescription. 
 
 An easement may be acquired by prescription by which water 
 collected upon land of one person must be allowed to overflow 
 the lands of an adjacent proprietor ; and the land owner has the 
 right, by prescription, to discharge the surface water of his land 
 through a ravine where it runs naturally and has been permitted 
 to run for over twenty years. But he has not the right, by dig- 
 ging ditches or tiling drains, to empty out sag-holes into this ra- 
 vine upon the lands of the adjacent proprietor.* A special right, 
 different from a general one, may be acquired by an adjoining 
 proprietor, by grant or by possession for such a length of time as 
 will furnish presumptive evidence of a grant. In England it has 
 been decided that twenty years' exclusive enjoyment of water in a 
 particular manner affords a conclusive presumption of right in the 
 party enjoying it, derived from some individual having the power 
 to make it, or from the Legislature ; and in some of the States 
 fifteen years' exclusive enjoyment will furnish the same evidence. 
 But no title to land under water can be acquired by such use of 
 the waters as the planting of oysters therein for any length of 
 
 1 Whitney v. Wheeler Gotlon Mills, 151 Mass. 396, 7 L. R. A. 013. 
 
 Wrace v. Tale, 4 Allen. 393. 
 
 ^Hankey v. Clark, 110 Mass. 263; Gould v. Boston Duck Co. 13 Gray, 442; 
 
 Pitts V. Lancaster Mills, 13 Met. 156; Drake v. Hamilton Woolen Co. 9S> 
 
 Mass. 580. 
 ^Gregory v. Bush, 64 Mich. 37, 7 West. Rep. 169.
 
 Chap. XIX.] EASEMENTS ACQUIRED BY PRESCRIPTION. 425 
 
 time.' Sncli exclusive right, moreover, must be measured and lim- 
 ited by the extent of its enjoyment, and the occupier can no more 
 enlarge it than he can assume a new right.' 
 
 The law presumes a grant of an easement, the extent of wliich 
 is measured, not by the actual or average depth of the water at 
 any given point, but by the nature and extent of the obstruction 
 itself.^ The mere nonuser of a water-power by a riparian owner 
 will not operate to impair his title, or confer any right thereto on 
 another. He has a legal right to have the stream continue to 
 flow through his land, irrespective of whether he may need it for 
 any special purpose or not.* 
 
 Where the right to a special use of the flowing water is rested 
 upon a presumed grant or prescription, the user must have been 
 uninterrupted.' But the doctrine of prescription, or presump- 
 tion of grant from lapse of time, can have no application to a case 
 of underground waters percolating, oozing or filtrating through 
 the earth.* 
 
 It is held in Striclder v. Todd^ 10 Serg, & R. 63, to be well- 
 settled law that, if there has been an uninterrupted and exclusive 
 enjoyment for more than twenty-one years, of living surface 
 water, in any particular way, it will create a conclusive presump- 
 tion of right in the parties so enjoying it equal to a right by 
 grant. The same rule is substantially declared in Hoy v. Sterrett, 
 2 Watts, 327; Darlington v. Paintei\ 7 Pa. 473, and Wheatley v. 
 Chrisman^ 24 Pa. 303. But a lower riparian owner can acquire 
 no prescriptive rights from mere diversion and use of the water 
 below, as against an upper owner.'' 
 
 ^ People V. Lowndes, 55 Hun, 469. 
 
 ^Ohapel V. Smith, 80 Mich. 100; Ingraham v. Hutchinson, 3 Conn. 584; 3 
 Kent, Com. 356. 
 
 ^Gehman v. Erdman, 15 W. N. C. 278. 
 
 ^Garwood v. Mw York Cent. & H. R. R. Co. 83 N. T. 400; Pilhhnry v. M<wre, 
 44 Me. 154; Blanchard v. Baker, 8 Me. 253, 23 Am. Dec. 504; Oardner v. 
 Newburgh, 2 John.s. Ch. 162, 1 N. Y. Ch. L. ed. 332, 7 Am. Dec. 526, 
 note, 532; Plumleigh v. Daicsan, 6 111. 544, 41 Am. Dec. 199; Caryv. Dan- 
 iels, 8 Met. 466, 41 Am. Dec. 532: Billing v. Murray, 6 Ind. 324. 63 Am. 
 Dec. 385; Whitney v. Wheeler Cotton Mills, 151 Mass. 396, 7 L. R. A. 613. 
 
 ^Turnbull v. Rivers, 3 McCord, L. 131; Pollard v. Barnes, 2 Cush. 191 ; Branch 
 V. Doane, 18 Conn. 233; Pierce v. Selleck, 18 Conn. 821; Delahoussaye v. 
 Judice, 13 La. Ann. 587. 
 
 ^Frazier v. Brown, 12 Ohio St. 294; Van Wycklen v. Brooklyn, 118 N, Y. 424. 
 
 "fMud Creek I. A. & Mfg. Co. v. Vivian, 74 Tex. 170.
 
 426 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 An easement in the use of flowing water will be presumed from 
 lapse of ti me, as for twenty-one years. 
 
 In Bealey v. Shaw, 6 East, 208, it is said that an adverse right 
 may exist founded on the occupation of the owner ; and though a 
 stream be either diminished in quantity, or even corrupted in qual- 
 ity, as by means of the exercise of certain trades, yet if the 
 occupation of the party so taking or using it has existed for so 
 long a time as to raise a presumption of a grant, the other party, 
 whose land is below, must take the stream subject to such adverse 
 right. Twenty years' exclusive enjoyment of the water in any 
 particular manner affords an exclusive presumption of right in 
 the party so enjoying it. 
 
 A prescriptive right to flow water upon another's land can be 
 acquired by twenty years of adverse user.* 
 
 Where one has laid an aqueduct from his premises to a spring 
 upon the premises of another before a deed is made, in which the 
 latter covenants that the former may have the water as it runs in 
 the aqueduct as long as he or his heirs shall need it, and the 
 former for more than twenty years maintains the aqueduct and 
 ■enjoys the use of the water in that way under a claim of title 
 without interruption, and with no objection from anyone, the 
 giving and acceptance of the deed is no limitation of his right ; 
 and he has a title to the water and an easement for the aqueduct 
 which will pass by a subsequent deed of his premises.^ 
 
 In many of the States the time for acquiring a right by pre- 
 scription is regulated by statute. Thus, in some States the ordi- 
 nary flow of the waters of a creek through a new channel, for more 
 than ten years prior to the erection of a dam, creates a prescriptive 
 riglit,^ and in some of the more recently settled States the limi- 
 tation of two years for bringing an action applies to damages oc- 
 casioned by the erection of mill-dams, and it is so ruled, although 
 such dams are not constructed under the terms or provisions of 
 
 Ulessinger's Appeal, 109 Pa. 285, 1 Cent. Rep. 424; Strkklcr v. Todd, 10 
 
 Serg. & R. 6;^; Hoy v. Sterrett, 2 Watts, 327; Darlington y. Painter, 7 Pa. 
 
 473; Wheatley v. Ghrisman, 24 Pa. 303. 
 ^Chapel V. Smith, 80 Mich. 100; Gonklin v. Boyd, 46 Mich. 56; Earl v. De 
 
 Hart, 12 N. J. Eq. 280; McOeorge v. Hoffman, 133 Pa. 381; Mueller v. 
 
 Fruen, 36 Minn. 273. 
 ^Keysar v. Covell, 62 N. H. 283. 
 *Smith V. Musgrove, 32 Mo. App. 241.
 
 "Chap. XIX.] EASEMENTS ACQUIRED BY PRESCRIPTION. 427 
 
 the statute.' In tlie older States the common-law period for pre- 
 scription will authorize the use of particular machinery. Thus 
 twenty 3'ears' user of a turbine wheel in j)lace of overshot wheels 
 supposes a grant and establishes a right to use it.' So of the use 
 <>f a stream in a particular way ;' or the use of a dam, or a flume.* 
 And a grantee is bound equally with the presumed grantor." The 
 right to the use of water for domestic purposes, although it flows 
 through an aqueduct, may be acquired by prescription.* But the 
 issues of fact must be determined by a jur}'.' 
 
 One acquiescing in the erection of a dam and the overflowing 
 •of his land for over thirty years cannot enjoin the rebuilding of a 
 part of the dam carried away.* 
 
 There can be no title by prescri])tion unless it appear that the 
 user was under claim of right.' The user must be adverse, that 
 is, under a claim of right, and invade the right, with his knowledge 
 and acquiescence, of the owner of the land.'" It must have been 
 -enjoyed under such circumstances as to indicate that it was claimed 
 as a right and was not regarded by the parties as a privilege, rev- 
 ocable at the option of the proprietor." 
 
 The finding by a master in a suit to restrain an interference with 
 
 ^Hardeaty v. Ball, 43 Kan. 151. 
 
 ^Terry v. Smith, 47 Hiui, 333. 
 
 ^Slrickler v. Todd, 10 Sera:. & R. 63; Winnipiseogee Lake Co. v. Young, 40 
 
 N. H. 430; Hall v. McLeod, 2 Met. (Ky.) 98; Olney v. Fenner, 2 R. I. 211; 
 
 Parker v. Facte, 19 Wend. 309, 315; Gayetty v. Bethune, 14 Mass. 51, 53; 
 
 Pilhbury V. Moore, 44 Me. 154. 
 *Burnliam v. Kempton, 44 N. H. 88. 
 ^Raritan W. P. Co. v. Veglite, 21 N. J. Eq. 478; Carlisle v. Stevenson, 3 Md. 
 
 Ch. 506, 507; High, Inj. (1st ed.) §§ 494-497, 505; Southard v. Morris Canal 
 
 & Bkg. Co. 1 N. J. Eq. 518; Gould, Waters, §§ 516, 527. 530; Wil.<<nn v. 
 
 Vavghn, 40 Iowa, 179; Sheldon v. Rockwell, 9 Wis. 166; Cohb v. Sntith, 16 
 
 Wis. 661; Reid v. Oifford, 6 Johns. Ch. 19, 2 N. Y. Ch. L. ed. 40; Vail 
 
 V. Mix, 74 111. 127. 
 Wority V. Dunning, 78 Me. 381, 3 New Eng. Rep. 41. 
 ''Parker v. Foote, 19 Wend. 309; Vail v. Mix, 74 111. 128. 
 Wallard v. Struckman, 123 111. 636, 12 West. Rep. 785. 
 ^Postlethwaiie v. Payne, 8 Ind. 104; Peterson v. MeCullmigh, 50 Ind. 41; 
 
 Palmer v. Wright, 58 Ind. 489; McCardle v. Barrickloic, 68 Ind. 356. 
 ^°Sargenty. Ballard, 9 Pick. 251; Gloucester v. Beach, 2 Pick. 60, note; Med- 
 ford V. Pratt, 4 Pick. 222; Gayetty v. Bethune, 14 Mass. 49, 55; Parker v. 
 
 Foote, 19 Wend. 309; Hart v. Vose, Id. 365; Luce v. Carley, 24AVend. 451; 
 
 Miller v. Garlock, 8 Barb. 153; Chalk v. McAlily, 11 Rich. L. 153; Mebane 
 
 V. Patrick, 1 Jones, L. 23. 
 "Bowman v. Wickliffe, 15 B. Mon. 84; Beall v. Chre, 6 Bush, 676; Eilburn 
 
 V. Adams, 7 Mel. 33.
 
 428 IMPOSED DUTIES, PERSONAL. [Part II, 
 
 a water right, reciting that the defendant's grantor told the orator's 
 grantor that if he would dig at a place pointed out and find water 
 he might conduct it to his premises and have it ; that the orator's 
 grantor did so dig and find water and convey it to his premises* 
 and that the orator and his grantor, under this right and claim,^ 
 continued to take it uninterruptedly and openly for more than 
 fifteen years, — shows a continuous exercise of adverse right under 
 a claim of ownership sufficient to create a prescriptive title.' 
 
 If a right is claimed by user, the extent of the right will be 
 fixed and limited by the extent of the user during the time neces- 
 sary to fix the right. The character or quality of the right will 
 be determined by the manner and mode of the user.' And the- 
 same proof of user that establishes the right is equally conclusive 
 in fixing the limitation of that right.' 
 
 When one uses an easement whenever he sees fit without asking 
 leave or without objection, the use is adverse ; and an adverse en- 
 joyment of twenty-one years gives an undisputed title to the en- 
 joyment.* Where a right is claimed by prescription, the time 
 from which the period is to be reckoned in computing is when the 
 injury or invasion of right begins, and not the time when the party 
 causing it began that which finally creates the injury." 
 
 In the case of a diversion of water, if the injury is caused by 
 the change of a dam, or of a ditch, or by suffering the latter to be 
 filled up or clogged,* or by applying the water to a different use, 
 or if the injury was caused by any recent act, either of omission 
 or commission, on the part of the proprietor, At may be said he had 
 previously only begun the work which caused the injury; but 
 where at the time the water was first diverted from the stream, 
 and for many years thereafter, it does not appear to have caused 
 
 ^Blaine v. Bay, 61 Vt. 566. 
 
 ^Darlington v. Painter, 7 Pa. 473; Holsman v. Boiling Spring B. Co. 14 N. 
 J. Eq. 335; Biglow v. Battle, 15 Mass. 313; Cotton v. Pocanset Mfg. Co. 18- 
 Jviet. 429; Stein v. Burden, 24 Ala. 130; Russell v. Scott, 9 Cow. 279; Bald- 
 win V. Calkins, 10 Wend. 167; Manier v. Myers, 6 B. Mon. 132; Strong v. 
 Benedict, 5 Conn. 2\(i; Powers v. Osgood, 103 Mass. 454; Burnham v. Kemp- 
 ton, 44 N. H. 78, 91. 
 
 ^Burnham v. Kempton, 44 N. H. 78; Carleton v. Redington, 21 N. H. 291; 
 Carlisle v. Cooper, 19 N. J. Eq. 256. 
 
 ^Garrett v. Jackson, 20 Pa. 331. 
 
 ^Waslib. Easem. § 49; Van Horn v. Grand Trunk R. Co. 18 U. C. Q. B. 356v 
 
 ^Polly V. McCall/dl Ala. 20-32.
 
 Chap. XIX.] EASEMENTS ACQUIRED BY PRESCRIPTION. 429 
 
 any injury to the property, but the injury results from the gradual 
 diminution of the volume of water flowing in the stream, which 
 has been the case for several years, while the dam which diverts 
 the water remains no higher and the ditches which let the water 
 from the stream and return it thereto are unchanged, and the di- 
 verter uses less water than formerly, the whole action and woi-k of 
 the diverter is a continuance only of that which was done on the 
 ground originally, the water continuing to be used for the same 
 purpose now as then, and the time of the prescription must date 
 from the original appropriation.' 
 
 The acts by which a right by prescription is sought to be estab- 
 lished must be such as to operate as an invasion of the right claimed 
 to such an extent that during the whole period of use the party 
 whose estate is sought to be charged with the servitude could have 
 maintained an action therefor." Right to maintain what is strictly 
 a private nuisance may be acquired by prescription for the statutory 
 time of limitation w^hich bars an entry upon land — usually twenty 
 years.^ But to constitute a prescriptive right in favor of a 
 railroad to overflow the lands of another by maintaining a defec- 
 tive bridge upon its right of way, it is not enough to show that 
 the bridge has been maintained in the same manner for twenty 
 years, but it must be shown that there has been a lapse of twenty 
 years since such an invasion of an adjoining proprietor's right as 
 resulted in giving him a cause of action." 
 
 ^Messinger's Appeal, 109 Pa. 285, 1 Cent. Rep. 423. 
 
 ^Boynton v. Longtey, 19 Nev. 69. 
 
 ^Slierlock v. Louisville, JSF. A. & C. R. Co. 115 Ind. 22, 14 West. Rep. 843- 
 
 Mitchell V. Parks, 26 Ind. 354; Wood, Nuis. p. 763; 1 Hilliaid, Torts (4i1j 
 
 ed.) p. 653. 
 *Sherlock v. Louisville, N. A. & 0. E. Co. 115 Ind. 23, 14 West. Rep. 843.
 
 CHAPTEE XX. 
 
 NEGLIGENTLY PERMITTING ESCAPE OR USE OF RUNNING 
 
 WATER. 
 
 Sec. 49. Liability for Injury from Permitting the Escape of Water. 
 
 Sec. 50. Tlie Right to Divert Water from a Stream. 
 
 Sec. oL Riparian Rights in Pacific States. — Diversion. 
 
 Sec. 52. Use of Waters to Siq^ply Cities. 
 
 Section ^^.—Liahility for Injury from Permitting 
 the Escape of Water. 
 
 The care required in the control of water has been somewhat 
 considered ah-eady.' "Where, for the purpose of raising the water 
 of a stream above its natural banks, and yet preventing its over- 
 flow, artificial embankments are constructed, which answer the pur- 
 pose perfectly, if, by the pressure of the water upon the natural 
 banks of the stream, percolation takes place so as to drown the ad- 
 joining lands of another, an action will lie for the damage occasioned 
 thereby."^ 
 
 Uncontradicted testimony that by reason of a dam the water in 
 a river and in a creek which emptied into it after running through 
 plaintiff's lands was raised and percolated over plaintiff's lands,, 
 rendering it w'et and soggy and thereby injuring him, is sufficient, 
 to justify a recovery of damages against the owners of the dam.' 
 But the fact that during the summer months an odor sometimes 
 arises from an excavation used as an ornamental, fish or ice pond, 
 that there is sometimes a green scum on a portion of its surface^ 
 that the bodies of dead animals have been taken therefrom, and 
 that when raised to a certain height water leaches or soaks into- 
 neighboring cellars, — will not necessarily bring the i:)ond within 
 the condemnation of a city ordinance requiring excavations to be 
 filled up and the water drained therefrom, where the desired ob- 
 ject can be accomplished by requiring the pond to be cleansed.* 
 
 1 See anU, pp. 45, 55, 56, 59, 60, 151, 154, 255-261, 269-289, 361. 
 ^PixUij V. Clark, 35 N. Y. 520; Crittenden v. Wihon, 5 Cow. 165. 
 ^Athens Mfg. Co. v. Rucker, 80 Ga. 291. 
 ^Rochester v. Simpson, 57 Hun, 36.
 
 Chap. XX.] LIABILITY FOR INJURY FROM ESCAPE OF WATER. 431 
 
 The degree of care which a party is bouivi to use in construct- 
 ing a dam across a stream is in proportion to the extent of the in- 
 jury which would be Hkely to result to a third person, provided 
 it should prove insufficient. It is not enough that the dam is suf- 
 ficient to resist ordinary floods ; for if the stream is occasionally 
 subject to freshets, those must likewise be guarded against ; and 
 the degree of care required in snch cases must be that which a dis- 
 creet person would use if the property in peril were his own. In 
 New York v. Bailey^ 2 Denio, 433, it was held that the dam 
 should be sufficient to resist, not merely ordinary freshets, but such 
 extraordinary floods as may be reasonably anticipated.* The rule 
 requires provision to be made against still more extraordinary 
 streams than occur in usual spring and fall freshets ; siTch freshets 
 as are known to occur only once in several years, and at no regu- 
 lar intervals." 
 
 Where the situation of the respective properties is such that the 
 improvement made upon the property of the one does not expose 
 his neighbor to injury unless the party making the improvement 
 is guilty of negligence, the occurrence of some extraordinary acci- 
 dent causing damage will not render the owner upon whose land 
 the improvement has been made liable.^ 
 
 Ordinary care as ai^plied to the construction and maintenance of 
 a dam is the care which a prudent man would exercise, consider- 
 ing the danger which must always attend the confining of water, 
 and which must anticipate freshets which sometimes occur, and 
 must therefore be reasonably expected.* Yet in China v. Southwicky. 
 12 Me. 238, one who had a right to regulate a dam at the point 
 where a stream flowed from a pond, and who thereby increased 
 the height of the water in the pond, was held not liable for the 
 destruction of a bridge caused by a still greater height of water, 
 resulting from continued rains. His right to erect the dam re- 
 lieved him from the remote and unforeseen consequences resulting 
 from the storm, no high* care being exacted from him than that 
 
 ' See also Lapham v. Curtis, 5 Vt. 371. 
 
 ^Oray v. Harris, 107 Mass. 492. 
 
 ^Blyth V. Birmingham Water-Works Co. 11 E.xch. 781; Uarrison v. Great 
 
 Northern R. Co. 3 Uurl. & 0. 231. 
 *Orayv. Harris, 107 Mass. 492; Neio York v, Bailey, 2 Denio, 433; Wolf yr. 
 
 St. Louis Independent Water Co. 10 Cal. oi4.
 
 432 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 of ordinary prudence in exercising his right to construct the 
 dam.' 
 
 Every owner of land through which a stream of water flows has 
 presumptively a right against the owners of land below him to 
 have the stream flow over his land in its natural channel unob- 
 structed. Such a right is infringed by the construction of a dam 
 below, that flows the stream back upon the land which naturally 
 it would leave.* Thus if a dam or obstructions maintained by the 
 owner of land cause back-water to flow upon land situated higher 
 up the stream, in the ordinary stages of water or freshets which 
 are to be anticipated, then such dam or obstructions would be illegal, 
 and the owner of the land flooded would be also entitled to recover 
 such damages as arose from such dam or obstructions in extraordi- 
 nary freshets.' 
 
 So far as one permanently floods the land of another there is a 
 l^hysical invasion of the land and a practical ouster of the posses- 
 sion thereof ; and in a real sense such land is taken from the owner.* 
 And one whose lands are damaged by an overflow caused by the 
 obstruction of a watercourse is entitled to recover, unless a grant 
 be shown or a prescriptive right exist, although the dams producing 
 such injury were erected before he had ai\y interest in the prop- 
 erty to which the injury was done, and the dams had not since 
 been raised." 
 
 Where the owner of land on a navigable river, by debris from 
 a quarry, practically closes the main channel and diverts it to the 
 further side of an island, with malicious intent to deprive the ri- 
 parian owner below of the use of the stream for mill purposes, for 
 which, without authority, he had constructed a dam across the 
 channel, the latter is entitled to no damages for the loss of the 
 water-power as such, but is entitled to recover for the deprivation 
 
 ' See also Hoffman v. Tuolumne County Water Co. 10 Cal. 413; Wolf v. St. 
 
 Louis Independent Water Co. 10 Cal. 541; Todd v. Cochell, 17 Cal. 97; 
 
 Everett v. Hydraulic Flume Tunnel Co. 23 Cal. 225; Lapham v. Curtis, 5 
 
 Vt. 371; Bailey y. New York, 3 Hill, 531 •, Livingston v. Adams, 8 Cow. 
 
 175; Pollett v. Lo7}g, 56 N. Y. 200. 
 ^Seriver v. Smith, 100 N. Y. 471, 1 Cent. Rep. 763. 
 mumphrey v. Irwin (Pa. Oct. 4, 1886) 4 Cent. Rep. 685. 
 *Pumpelly v. Green Bay & M. Canal Co. 80 U. S. 13 Wall. 166, 20 L. ed. 
 
 557; Eaton v. Boston, C. & 31. B. Co. 51 N. H. 504; Story v. Aew York 
 
 El. B. Co. 90 N. Y. 185. 
 ^Mississippi & T. B. Co. v. Archibald, 67 Miss. 38.
 
 Chap, XX.] LIABILITY FOR INJURY FROM ESCAPE OF WATER. 433 
 
 of convenient access to tlie river for tlie purposes of navigation 
 and fishing, or for domestic or other proper purposes.' 
 
 Eiparian proprietors are entitled to liave sand naturally flowing 
 in the stream pass down unobstructed, and if by reason of the con- 
 struction of a dam across the stream sand lodges and chokes up 
 the stream, thereby overflowing their lands, they may recover dam- 
 ages against the owner of the dam ; and the fact that the sand 
 reaches the stream by reason of the cultivation of lands lying fur- 
 ther up its course is immaterial." So if the dam by reason of im- 
 perfect construction accumulate ice, which results in injury to the 
 neighboring land in spring freshets, the special injury may be 
 recovered.' 
 
 The fact that annual freshets of a river slightly impede the 
 growth of hay on abutting lands will not relieve from liability one 
 who erects a dam in such a manner as to flood said lands, thereby 
 destroying their value for the purposes to which they are best 
 adapted and for which they were purchased.'' In an action for 
 causing the overflow of lands, evidence that the land, after being 
 flooded, became baked and broke up in clods and chunks, and was 
 foul with weeds, is proper as showing the effect of the overflow.' 
 An allegation in pleading that land was damaged by "overflowing" 
 was held established by proof that the water of the stream, being 
 set back by the dam and caused to stand at a greater depth in the 
 bed of the stream by reason thereof, percolated through the earth 
 so as to rise and stand therein within one or two feet of the sur- 
 face." There is no variance between an allegation in a complaint 
 that defendants caused the waters of a certain river to flow into a 
 certain creek, thereby damaging plaintiff, etc., by reason of the 
 overflow, and proof that defendants wrongfully caused the waters 
 of such river to flow into an artificial channel constructed twenty 
 years before the alleged wrongful act, and which had become the 
 channel of such creek.' 
 
 ^Fulmer v. Williams, 122 Pa. 191, 1 L. R. A. 603. 
 
 ^Hines v. Jarrett, 26 S. C. 480; Schuylkill Nav. Co. v. McDonovgh, 33 Pa. 73. 
 ^Bell V. McClintock, 9 Watts, 119. See Coiples v. Eidder, 2i N. H. 364. 
 *Stone V. Roscommon Lumber Co. 59 Mich. 24. 
 ^Noe V. Chicago, B. & Q. R. Co. 76 Iowa, 360. 
 ^Pierce Mill Co. v. Koltermami, 26 Neb. 722. 
 ''Tucker v. Salem Flouring Mills Co. 15 Or. 581. 
 28
 
 4:3i IMPOSED DUTIES, PERSONAL. [Part 11. 
 
 Farmers and others residing in the vicinity of lands overflowed 
 are competent to testify as to the quantity of water which flowed 
 throngli certain chaimels in times of freshet, and why the water 
 was liigher on one side of a raih'oad embankment than it was on 
 the other, after the performance of work complained of.* Dam- 
 ages to property by the overflow of water are properly measured 
 by the diminished rental value during the continuance of the nui- 
 sance.'' But an action on the case for flowing land will not lie 
 against a former owner of the land who erected a dam, and built 
 a mill, by means of which the injury is done, wliere it appears that 
 other persons are in possession of the premises, occupying them as 
 their own, and there is no evidence that they hold as the tenants 
 of such former owner. The action must be against the persons in 
 possession.^ In Beswiok v. Cunden^ Cro. Eliz. 402, 520, it was 
 held that an action on the case did not lie for a nuisance because 
 the plaintiff might have his remedy by an assize or quod jpermittat. 
 That was an action on the case for that the defendant erected a 
 dam in a certain river whereby it surrounded the land of one J. S.. 
 who afterwards enfeoffed the plaintiff thereof; to this declaration 
 there was a demurrer, and it was held that this action did not lie. 
 
 Nor will express authority to build a bridge relieve from liability 
 for a want of care not to invade the rights of others. Thus, a rail- 
 road corporation, although authorized by law to construct its road 
 across a stream, is liable for damage done to lands adjacent there- 
 to by the construction of a bridge which causes the water and ice 
 to gorge and overflow such land ; and to avoid this liability, in the 
 selection of the character of bridge to be built, due regard must 
 be had to the rights of the adjacent land owners, as well as to the 
 safety of the public who may travel over its road, or who may re- 
 quire the use of the same for the transportation of property.* 
 Nor has a railroad company the right to fill up trestle work away 
 from the main channel of the river, if by so doing the overflow of 
 water will be increased, to the damage of land owners in times of 
 
 ^Noe V. CMcngo, B. & Q. R. Co. 76 Iowa, 360. 
 
 ^Evfaula y. Simmons, 86 Ala. 515. 
 
 ^Blunt V. Aikin, 15 Wend. 523. 
 
 *McOlene(/han v. Omaha & R. V. R. Co. 25 Neb. 523.
 
 Chap. XX.] LIABILITY FOR INJURY FROM ESCAPE OF WATER. 435 
 
 freshet;' but a railway company is not hable for damages caused 
 by overflow from any unprecedented storm, even though the dam 
 and overflow would not have occurred at its bridge if it liad left 
 no obstructions, such as piling, there, unless the piling would havc^ 
 caused a dam and overflow from an ordinary storm ;' and it can- 
 not be held liable for an injury or loss caused by others diverting, 
 by the construction of levees, water in a body into the stream, 
 which had not received it before the erection of the railroad 
 bridge.' Yet a corporation, though it constructs its dam upon its 
 own land under authority of its charter, is lial)le for damages- 
 which arise from its intentional act in discharo-ino- throuijh an in- 
 adequate channel a large body of water, without providing a suf- 
 ficient outlet, thereby overflowing adjacent land.* In fact, the 
 backing of water so as to overflow the lands of an individual, or 
 any other superinduced addition of water, if done under statutes 
 authorizing it for the public benefit, is the taking of private prop- 
 erty for public use within the meaning of the constitutional pro- 
 vision requiring compensation to be made for private property 
 taken for public use.^ 
 
 Although a person whose land is injured by the wrongful main- 
 tenance of a dam across a watercourse running through it is not 
 within the rule that, in case consequences of negligence are im- 
 pending, whosoever can shun them by ordinary care and fails to 
 do so will be barred from recovery of the resulting damages,' yet 
 the overflow water from a river may be kept off fi'om land at a 
 distance from the river by a barrier or embankment, although this 
 may set it back on land nearer the river, if the owner of the lat- 
 ter will not co-operate with those behind him in erecting a levee 
 
 ^Noe V. Cliicago, B. & Q,. R. Co. 76 Iowa, 360. 
 
 « ^Coleman v. Kansas City, St. J. & C. B. R. Co. 36 Mo. App. 476. 
 
 *McKee v. Delaware & H. Canal Co. 53 Hun, 52; Omaha & R. V. R. Go. v. 
 
 Brown, 16 Neb. IGl; Union Trust Co. v. Cupjji/, 26 Kun. 754; Little Rock 
 
 & Ft. 8. R. Co. V. Chapman, 39 Aik. 463. 
 
 ^Pumpelly v. Green Bay & M. Canal Co. 80 U. S. 13 Wall. 166, 20 L. ed. 
 557; Eaton v. Boston, G. & M. R. Co. 51 N. H. 504; Grand Rapids Boom- 
 ing Co. V. Jan-is, 30 Mich. 321; Booker v. New Haven & N. Co. 14 Conn. 
 146; Rowe v. Granite Bridge Corp. 21 Pick. 344; Nevins v. Peoria, 41 111. 
 502, 510; Pettigrew v. Evansnlle, 25 Wis. 223, 231, 232, 236; Cooley, Const. 
 Lim. 542, 545; Canal Comrs. v. People, 5 Wend. 452; Ston/ v. Aew York 
 El. R. Co. 90 K Y. 122, 159; Re New York El. R. Co. 36 Hun, 427. 
 
 •Athens Mfg. Co. v. Rucker, 80 Ga. 291; Wolf v. St. Louis Independent Water 
 Co. 10 Cal. 541.
 
 436 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 on the bank to protect all the lands from such overflow ;' and one 
 is not liable for causing an overflow of another's land bj the erec- 
 tion of a dam of sufficient size to protect his own land from the 
 ill effects of a dam erected by the other on the other side of the 
 creek. It would be error to qualify an instruction to that effect 
 by adding that he can erect such dam only when, by the exercise 
 'of reasonable care, it can be done without injury to others.'' Nor 
 will au injunction lie in favor of one riparian proprietor to restrain 
 the opposite proprietor from maintaining and using a dam and 
 canal M^holly on the latter's side of the middle or thread of the 
 stream, whereby he makes a reasonable use of the water for mill- 
 ing purposes, where the quantity of water which would otherwise 
 have flowed along plaintiff's bank is not materially diminished, 
 and plaintiff is in no manner injured by the diversion f and one 
 who built a dam on the line of a highway where it crossed a ra- 
 vine, making a safe and suitable crossing by a causeway composed 
 of logs, brush, stone and earth, which was used by the public and 
 for a time maintained and repaired by the highway officers, is not 
 chargeable with its maintenance and repair, or lia])le for injuries 
 occasioned by its being out of repair.^ 
 
 Cahill V. Eastman, 18 Minn. 324, recognizes to the full extent 
 the decision in Fletcher v. Bylands, L. R. 1 Exch. 265. The de- 
 fendants were held liable in that they had put their land to a use 
 which necessarily tended to injure the plaintiffs in their rights in 
 the property, and the damage the plaintiffs have sustained is tlie 
 direct and inmiediate result of these operations on their own land. 
 The plaintiffs, on and after January 8, 1870, were in possession, 
 and the owners, of the leasehold title in certain mill property on 
 Hennepin Island, which island divides the waters of the Missis- 
 sippi River into two channels at the falls above and below them, 
 extending about one thousand feet above and five hundred feet 
 below. The bed of the river below is about thirty feet lower 
 than the bed of the river above ; a stratum of limestone about ten 
 feet in thickness forms the bed of the river above the falls and 
 extends across the island and rests upon hard sand to the depth of 
 
 ^McDanielv. Gummings, 83 Cal. 515, 8 L. R. A. 575. 
 ^Wiihelm v. BurUyson, 106 N. C. 381. 
 '^Pinney v. Luce^Wmn. Oct. 7, 1890) 46 N". W. Rep. 561. 
 * Wallace v. Evans, 43 Kan. 509, 8 L. R. A. 52.
 
 Chap. XX.] LIABILITY FOR INJURY FROM ESCAPE OF WATER. 437 
 
 the bed of the river below the falls. Prior to October 4, 1860, 
 the defendants dug a tunnel six feet high from the lower end of 
 Hennepin Island and under the entire length of said island through 
 the hard sand under said stratum of limestone, and at a depth of 
 more than thirty feet below the level of the bed of the river 
 above the falls. Just opposite the plaintiifs' mill, it was dug 
 within 75 feet of the east shore, which was a steep perpendicular 
 bank, down to the bed of the river below the falls, and as low as 
 the bottom of the tunnel. On October 4tli, the waters of tlie 
 river burst into said tunnel at its upper end, and rushed through 
 it in great volume, rending the rocks and tearing away the ground 
 to a considerable extent on the deep sides of its entire length. There- 
 after the flow of the water through it was in most parts stopped ; 
 but in April, 1870, during the ordinary spring freshet, the water 
 again burst into the tunnel, filling it, and rushing through it with 
 such volume and force that it washed out and undermined the 
 lower end of the island between the tunnel and the east shore on 
 which plaintiff mill stood, from the mouth of the tunnel to 
 plaintiffs' mill, and washed out and undermined the island on 
 which plaintiffs had a right of way and on which their mill stood, 
 to the injury of the plaintiffs' warehouse, mill and machinery. 
 The case does not disclose the object of the work. The defend- 
 ants, however, dug the tunnel for their own purposes, whatever 
 these were, and, nothing appearing to the contrary, it must be 
 taken of course that they did so with the license of the owners of 
 the soil. The complaint describes the excavation and alleges that 
 it was done so negligently that the water burst in. The answer 
 denies that the work \\;as done negligently. As the case discloses 
 only the bare fact of the excavation of the tunnel, the strongest 
 way in which this can be taken for defendants is that the most 
 careful and skillful person would have dug just such a tunnel be- 
 lieving it to be safe. If, nevertheless, the water burst in, this 
 cannot be said to be the result of some cause unshown. The 
 pleadings disclose the cause, viz., the superior force of the water 
 overcoming the resistance which the roof of the tunnel, as de- 
 fendants had constructed it, opposed to it. Then it may be said, 
 with entire correctness, that the tunnel itself brought the water 
 into it. They believed that they had left a power sufficient to
 
 438 , IMPOSED DUTIES, PERSONAL. [Part II. 
 
 keep out the water. This may take away any moral blame from 
 them, but it cannot affect their legal responsibility, if they are 
 legally responsible.' For if the water, by its own natural force, 
 will break through the barrier thus left to keep it out, into the 
 tunnel, that would be just as much a direct and inevitable result of 
 such an excavation as of a surface excavation, and, once in, the 
 tunnel guided the water to a point where it undermined and de- 
 stroyed the plaintiffs' property. The excavation of the tunnel 
 necessarily tended to cause this injury. The defendants had no 
 idea but that the roof of their tunnel would keep out water. The 
 act which caused the mischief, practically, was as voluntary on 
 their part as that of the defendants in Fletcher v. Rylands. They 
 brought water to a shaft that led to plaintiffs' property ; these 
 defendants brought a shaft that led from plaintiffs' premises to the 
 water. The court admit that such a case as this comes rather 
 under the head of nuisance, citing from Blackstone: "As to nui- 
 sance to one's lands, if one erects a smelting house for lead so near 
 the land of another that the vapor and smoke kill his corn and 
 grain and damage his cattle therein, this is held to be a nuisance; 
 and, by consequence, it follows that if one does any other act in 
 itself lawful, which yet, being done in that place, necessarily tends 
 to damage another's property, it is a nuisance ; for it is incumbent 
 on him to find some other place to do that act, where it would be 
 less offensive." * That is, as the court says, it is his duty not to 
 make such use of his own property as will injure his neighbors ; 
 the maxim sic utere tuo ut alienum non loedas applies, and he is 
 liable, at all events, for the consequences, if he violates that duty. 
 The case is also rested upon what is called the natural right of 
 support from neighboring soil.' 
 
 The degree of care and foresight which it is necessary to use, 
 where water is attempted to be confined, must always be in pro- 
 portion to the nature and extent of the injury which would be 
 likely to result from the occurrence which is to be anticipated and 
 guarded against, and it should be that care and prudence which a 
 discreet and cautious individual would or ought to use if the whole 
 
 ^Smith V. Fletcher, L. R. 9 Exch. 64. 
 2 2 Bl. Com. bk. 3, chap. 13, p. 218. 
 *See Rowhotham v. WiUon, 8 El. & Bl. 136; Humphries v. Brogden, 12 Q. B. 
 
 738, 743.
 
 Chap. XX.] LIABILITY FOK INJUKY FROM ESCAPE OF WATEK. 439 
 
 risk and loss were to be his own exclusively. In Bailey v. Keio 
 York, 3 Hill, 531 ; Keic York v. Bailey, 2 Denio, 433, the dam 
 was built with an insulhcient water way ; it was not such a one 
 as ought to have been constructed and maintained for the purpose 
 for the safety of those whose property would probabl}' be injured 
 by the breaking of the dam. It was therefore held to have been 
 negligently built. The probable, if not the necessary, consequence 
 of the carrying off of the site of the dam by a flood would be, not 
 only to sweep away the buildings and erections of all the others' 
 property upon the Croton below such dam, but also to endanger 
 the lives of such owners and their families. The dam should there- 
 fore have been constructed in such a manner as to arrest such ex- 
 traordinary floods as might have been reasonably anticipated to 
 occasionally occur. 
 
 It has been stated, as a matter of public policy, that it is better 
 that one man should surrender a particular use of his land than 
 that another should be deprived of the beneficial use of his prop- 
 erty altogether.* 
 
 In CahiU v. Eastman, 18 Minn. 324, the court, in referring to 
 Rockwood v. Wilson, 11 Cush. 221, which holds that nothing can 
 be better settled than that if one did a lawful act on his own prem- 
 ises, he cannot be held responsible for injuries that may result from 
 it, unless it was so done as to constitute actionable negligence, 
 remarked : " It is to be noted that what may result is not the 
 same thing as what must result from a given act ; " and, as the 
 court distinguishes between such an act as that of which it was 
 speaking and a private nuisance which it terms an unlawful act, 
 it may have had Blackstone's definition of such nuisance in mind. 
 But if it intended the statement to apply to all cases the necessary 
 result of acts, in themselves lawful, it is too broad ; nor do the 
 cases which it cites sustain it in so holding. 
 
 The law in this country is settled that if one builds a dam upon 
 his own premises, and thus holds back and accumulates the water 
 for his benefit and confines the water upon his premises in a res- 
 ervoir, in case the dam or the banks of the reservoir give wav, and 
 the lands of a neighbor are thus flooded, he is not liable for dam- 
 
 ^Eay V. CoJwes Co. 2 N. Y. 159.
 
 440 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 ages, without proof of some fault or negligence on his part.' The 
 true rule as recognized in this country is laid down in the case of 
 Livingston v. Adams, 8 Cow. 175, as follows : " Where one builds 
 a mill upon the proper model, and the work is well and substan- 
 tially done, he is not liable for any action, although it break away, 
 in consequence of which his neighbor's dam and mill below are 
 destroyed. Negligence should be shown in order to make him 
 liable."' But where water is accumulated wrongfully, the party 
 so doing, in letting it out, must do so at his peril.' 
 
 Evidence tending to show that damages were caused to plaintiff's 
 mining claim by the breaking of defendant's wooden dam and res- 
 ervoir, from its poor construction and its rotten and decayed con- 
 dition, and the plaintiff's want of attention to the reservoir, will 
 support a verdict, though defendant's evidence may tend to prove 
 the break to have been in the native ear that one end of the dam. 
 The City of New York was held liable for injuries occasioned by 
 the negligent and unskillful construction of a dam to aid in sup. 
 plying the city with fresh water, although the commissioners who 
 contracted for its construction were appointed by the State, they 
 being held to be agents of the corporation.' 
 
 Section 50.— The Right to Divert Water from ou 
 
 Stream. 
 
 It is a well-recognized rule that a riparian proprietor may, jure 
 naturae,, divert water from a stream for domestic purposes, and, 
 if there be an excess after its use for these purposes by all en- 
 titled, he may use his proportion for the irrigation of his land, 
 having due regard to the conditions and circumstances of other 
 
 ^Pixley V. Clark, 35 N. Y. 520; Sheldon v. SJierman, 43 N, Y. 484; Everett v. 
 Hydrmdic Flume Tnnnel Co. 23 Cal. 225; Todd v. CocJiell, 17 Cal. 97; 
 Shreioshury v. Smith, 12 Cush. 177; Lapham v. Curtis, 5 Vt. 371; Living- 
 ston V. Adams, 8 Cow. 175; Bailey v. New York, 3 Hill, 531. 
 
 *See Hoffman v. Tuolumne County Water Co. 10 Cal. 413; Louisville & P 
 Canal Co. v. Murphy, 9 Bush, 533; Parrott v. Barney, 1 Bawy. 443; Phila. 
 delphia & R. B. Co. v. Yeiser, 8 Pa. 374; Gillett v. Johnson, 30 Conn. 180, 
 
 "Frye v. Moor, 53 Me. 583; Stevens v. Kelley, 78 Me. 445, 8 New Eng. Rep. 
 232. 
 
 * Wiedekind v. Tuolumne County Water Co. 88 Cal. 198. 
 
 ''Bailey v. New York, 3 Hill, 531, cited in Platz v. CoJwes, 89 N. T. 234, and 
 Donovan v. McAlpin, 85 N. Y. 188; explained in People v. Civil Service 
 Supervisory and Examining Boards, 8 How. Pr. N. S. 43, 44, 47.
 
 Chap. XX.j EIGHT TO DIVEKT WATER FROM STREAM. 441 
 
 proprietors of the stream; but if one divert the water of a stream 
 by artificial means, he is bound to take care o*^ the same until it 
 returns to its natural bed.' He should not so divert it as to de- 
 stroy or materially diminish or impair the application of the water 
 by other proprietors.^ What will constitute such reasonable use 
 has been heretofore somewhat considered.' 
 
 The general rule is often stated to be that every riparian pro- 
 prietor has an equal right to have the stream flow through his 
 lands in its natural state, without material diminution in quantity 
 or alteration in qnality. But this rule is qualified by the limita- 
 tion, now well recognized, that each of such proprietors is entitled 
 to a reasonable use of the water for domestic* agricultural and 
 manufacturing purposes; or, to state the rule in the words of 
 Shaw, Gh. </., in Gary v. Daniels, 8 Met. 477, 41 Am. Dec. 532: 
 " Each proprietor is entitled to such use of the stream, so far as it 
 is reasonable, conformable to the usages and wants of the com- 
 munity, and having regard to the progress of improvement in h)'- 
 draulic works, and not inconsistent with a like reasonable use by 
 the other proprietors of land on the same stream above and below." ' 
 
 There is no principle of law better recognized than that eveiy 
 riparian owner of lands, through which streams of water flow, has 
 a right to the reasonable use of the running water, which is a pri- 
 vate right of property. The right is one annexed and incident to 
 the freehold, being a real or corporeal hereditament, in the nature 
 of an easement, and must be enjoyed with reference to the similar 
 rights of other riparian proprietors. It is therefore a qualified, 
 
 ^Baker v. Broion, 55 Tex. 377; Tucker v. Salem Flounng Mills Co. 15 Or. 581. 
 
 MVashb. Easem. 240; Miner v. Gilmour, 12 Moore, P. C. 155; Elliott v. 
 Fitchburg R. Co. 10 Cush. 191; Embrey v. Owen, G Excb. 353. 
 
 ^^eeante, pp. 409-411. 
 
 *The right of the land owner to divert water for domestic purposes will be 
 protected. Messinger's Appeal, 109 Pa. 285, 1 Cent. Rep. 424. 
 
 •This is exhavistively discussed in the foliowina: authorities: Stein v. Bur- 
 den, 29 Ala. 127; Burden v. Stein, 27 Ala. 104; Stein v. Burden, 24 Ahi. 
 130; Davis v. OetcMl, 50 Me. 602, 79 Am. Dec. 636, and note. (538-045; 
 Uumont V. Kellogg, 29 Mich. 420; Elliot v. Fiicliburq R. Co. 10 Cush. 191; 
 Croaker y. Bragg, 10 Wend. 260; Gould, Waters, §^ 213-215. The u.se 
 for domestic purposes includes household uses, cooking, washing, clean- 
 ing and supplying a reasonable number of domestic animals ( Uliion Mill 
 & Min. Co. V. Ferris, 2 Sawy. 176; Attorney-Oeneral v. Great Eastern R. 
 Co. 23 L. T. N. S. 344), and washing carriages (Wilts &B. Canal &N. Co. 
 V, Sicindon Waterworks Co. L. R. 9 Ch. 457); and brewing comes within 
 the use also. Elliot v. Fifchburg R. Co. 10 Cush. 195; (Jarwood v. Atic 
 York Cent. & H. R. R. Co. 83 N. Y. 400.
 
 44:2 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 and not an absolute, right of property.' He ma}^, to a reasonable 
 extent, jure natuvcB, use or divert the water from a stream for do- 
 mestic purposes, and for the irrigation of his land." 
 
 In 1832, the Supreme Court of Pennsylvania said in Howell v. 
 3rCoy, 3 Rawle, 269: "Each riparian owner has a right to a 
 reasonable use of the stream. Nor are we to be understood as 
 saying that there can be no diminution or alteration whatever, as 
 that would be denying a valuable use of the water."' 
 
 The common law allows every riparian owner to divert the 
 stream for purposes of irrigation or power, subject only to return 
 the projjer proportion to its natural channel on his own ground.' 
 
 A riparian owner, it was formerly said, had the right to diminish 
 the quantity of water, by spreading it upon his land to manure 
 and enrich it and make profit, providing he did it prudently and 
 did not deprive the owners below him of the surplus." 
 
 A man owning a close on an ancient brook could then lawfully 
 use the water thereof for the purpose of husbandry, as watering 
 his cattle and irrigating the close; and he could do this either by 
 dipping water from the brook and pouring it upon his land or by 
 making small sluices for the same purpose ; and if the owner of 
 the close below was damaged thereby it was dammim, absque in- 
 juria.^ l^ow he must use it in irrigating his land in such a way 
 as to do the least possible injury to his neighbor who has the same 
 right. He must not use it, however, for agricultural or manufac- 
 turing purposes, if thereby he deprive his neighbor of the ordinary 
 use.' All that the law requires of the party by or over whose land 
 
 ^Gardner v. Newburgh, 2 Johns. Ch. 163, 1 N. Y. Ch. L. ed. 332. 7 Am. 
 Dec. 536, and note, 531-534; Ang. Watercourses, § 5; Tiedeman, Real 
 Prop. § 614; Wadsworih v. Tillotson, 15 Conn. 366;" Boone, Real Prop. 
 § 141.' 
 
 ^Messenger's Appeal, 109 Pa. 285, 1 Cent. Rep. 423; Leaj-ned v. Tangeman, 
 65 Cal. 334. 
 
 ^Kauffman v. Oriesemer, 26 Pa. 407; 3 Kent, Com. 440, 441; Emhrey v. 
 Owen, 6 Exch. 3o3; Farrell v. Eichards, 30 N. J. Eq. 511; Bnker v. 
 Brown, 55 Tex. 377; Miner v. Oilmour, 12 Moore, P. C. 131; Tyler v. 
 Wilkinson, 4 Mason, 397. 
 
 ^Perkins v. Dow, 1 Root, 535, decided in Connecticut in 1793. This exclu- 
 sive right is now restricted to wants of the family and of stock. Union, 
 Mill & Min. Co. v. Ferris, 2 Sawy. 176; Evans v. MerriweatJier, 4 111. 493; 
 Learned v. Tangeman, 65 Cal. 334; Arnold v. Foot, 12 Wend. 330. 
 
 ^Watson V. Alden, 8 Mass. 136. 
 
 ^Lux V. Haggin, 69 Cal. 355; Arnolds. Foot, 12 Wend. 330; Elliot v. Fitchburg 
 E.Go. lOCush. Id3; Farrell y. Bichaj'ds, 30 l>i. J. Eq. 511; Jones v. Adams.ll
 
 Ohap. XX.J KIPARIAN KIGUT5 IN PACIFIC STATES. 443 
 
 the stream passes is that he should use the water in a reaponal)le 
 manner, and so as not to destroy or render useless, or materially 
 diminish or affect, tlie application of the water, by the proprietors 
 below on the stream.' 
 
 Briefly stated, the rule as to running surface water is that the 
 owner can appropriate it to his own use, but eaimot so divert it as 
 to prevent its use hy those below him ; and even where the water 
 is running under ground, if it flows in a natural channel known 
 and ascertained by those deriving its benefits, it cannot be diverted 
 to the injury of riparian proprietors.^ 
 
 A provision in a canal company's charter, that it may use wa- 
 ters of a certain stream for purposes of irrigation, gives it no right, 
 of itself, to appropriate the waters of the stream without license 
 from the riparian owner, or exercise of the power of eminent do- 
 main." 
 
 Section ^\.— Riparian Rights in Pacific States.— 
 
 Diversion. 
 
 In States where the common law has not been adopted by leg- 
 islative enactment, courts have proceeded upon the hypothesis of 
 its adoption, subject always to its applicability to the locality.* 
 From the authorities it seems the applicability of the common-law 
 
 Nev. 84; Colhurnyr. RicJiards, 13 Mass. 420; Blanchardv. Baker, 8 Me. 253; 
 Anthony v. Lapham, 5 Pick. 17o. See also, to the same effect. Wddsworth v. 
 Tillotson, 15 Conn. 366, 89 Am. Dec. 391, note; Neichnll v. Ireson, 8 Cush. 
 595; Parker v. OriHwold, 17 Conn. 300; Oillett v. Johnson, 30 Conn. 180; 
 Ilardiny v. Stamford Water Co. 41 Conn, 92; Cooky. Hull, 8 Pick. 269; 
 Gary V. Danielt, 5 Met. 286; Qreenslade v. Hallidny, 6 Binir. 379; Gard- 
 ner V. NeiPhiirgh, 2 Johns. Ch. 162, 1 K Y. Ch. L. ed. 332; 7 Am. Dec. 
 532, editor's note, citing Snow v. Parsons, 28 Vt. 459; Chasemore v. Rich- 
 ards, 2 Hurl. & N. 190; Hayes v. Waldron, 44 N. H. 580; Sprincifield v. 
 Harris, 4 Allen, 494; Davis v. Oetchell, 50 Me. 602; Sampson v. Hoddinott, 
 1 C. B. N. S. 590; Gould v. Boston Duck Co. 13 Gray. 442; Hall v. Swift, 
 6 Scott, 167; Pitts v. Lancaster Mills, 13 Met. 156; Pai7ie v. Woods, 108 
 Mass. 160, 173; Blessing v. Blair, 45 Ind. 546; Union Mill & Min. Co. v. 
 Ferris, 2 Sawy. 176; Miller v. Miller, 9 Pa. 74: Fleming v. Z)(im, 37 Tex. 
 173; Ferrea v. Knipe, 28 Cal. 348; Stein v. Burden, 29 Ala. 127. 
 » 8 Kent, Com. 439; Wadstcoi-th v. Tilhtson, 15 Conn. 366. 39 Am. Dec. 396; 
 Miller v. Miller, 9 Pa. 77; Elliot v, Fitchburg R. Co. 10 Cush. 194. 
 
 ^Redman v. Forman, 83 Ky. 215. 
 
 ^Mud Creek I. A. & Mfg. Co. v. ViHan, 74 Tex. 170. 
 
 ■*Stout V. Keyes, 2 Doug. (Mich.) 184; Lormany. Bemon, 8 Mich. 18; M<rr- 
 ruv. Venderen, 1 U. S. 1 Dall. 67, 1 L. ed. 40; Report of the Judges. 3 
 Binn. 595; Sheioel v. Fell, 3 Yeates, 21; Flanagan v. PhtUuklphia, 42 Pa. 
 219; State v. Cawood, 2 Stew. (Ala.) 360; Inge v. Murphy, 10 Ala. 885.
 
 444 IMPOSED DUTIES, PERSONAL. [Part II, 
 
 rule to the plijsical cliaracteristics of the State should be consid- 
 ered. Its inapplicability to the Pacific States, as shown in Atchi- 
 son, V. Peterson, 87 U. S. 20 Wall. 510, 22 L. ed. 415, applies 
 forcibly, it is said by the Supreme Court of that State, to the State 
 of Xevada.' There the soil is arid and unfit for cultivation, un- 
 less irrigated by the waters of running streams. The general 
 surface of the State is table-land, traversed by parallel mountain 
 ranges. The great plains of the State afford natural advantages- 
 for conducting water, and lands otherwise waste and valueless be- 
 come productive by artificial irrigation. The condition of the- 
 country and the necessities of the situation impelled settlers upon 
 the public lancjs to resort to the diversion and use of waters. This- 
 fact of itself is a striking illustration and conclusive evidence of 
 the inapplicability of the common-law rule. The system whicb 
 the necessities of the people established was recognized and con- 
 firmed by the legislation of Congress: Jirst, by the Act of July 
 26, 1866, which declares in its ninth section "that whenever, by 
 prioi'ity of possession, rights to the use of waters, for mining, ag- 
 ricultural, manufacturing or other purposes, have vested and ac- 
 crued and the same are recognized and acknowledged by the local 
 customs, laws and decisions of courts, the possessors and owners 
 of such vested rights shall be maintained and protected in the 
 same," — the title from the United States, until the passage of this 
 Act, carried riparian rights in all non-navigable streams, notwith- 
 standing all prior appropriations, or use of easements, however 
 long continued;'' and, second, by the Desert Land Act, which 
 encourages the appropriation and use of water upon such of the 
 public lands as will not, without irrigation, produce an agricul- 
 tural crop, by authorizing the sale of a greater amount of such 
 land than the purchaser could otherwise acquire, upon proof of 
 his having conducted water upon it for the purpose of irrigation. 
 This Act applies only to the Pacific coast States and Territories.* 
 The legislation of the State, also, has encouraged the diversion of 
 water by an Act approved March 3, 1866, the general object of 
 
 ^Reduction Works v. Stevenson, 20 Nev. 269, 4 L. R. A. 60. 
 
 •^Van Sickle v. Uaines, 7 Nev, 249; Gibson v. Chouteau, 80 U. S. 13 Wall. 93, 
 
 20 L. ed. 534; Union Mill & Min. Co. v. Ferris, 2 Sawy. 176; Tyler v. 
 
 ^Yilkinson, 4 Mason, 397; Pope v. Kinman, 54 Cal. 3. 
 
 SU. S. Slat. 1877, p. 377.
 
 Chap. XX.] RIPARIAN RIGHTS IN PACIFIC STAT?:S. 445 
 
 ■u'liich is expressed in its title, as follows: "An xVct to Allow Anv 
 Person or Persons to Divert the Waters of Any River or Stream, 
 and Run the Same throu<i;h anv Ditch or Flume, and to Provide 
 for the Rii^ht of Way through the Lands of Others.'" 
 
 Under the Acts of Congress of July 26, 1S66 (14 Stat, at L. 
 chap. 2,^3), and July 9, 1870, § 17 (16 Stat, at L. chap. 233), 
 the riparian rights of a homestead claimant in a creek run- 
 ning over public lands are subordinate to a prior appropriation 
 of its water bv another." U. S. Rev. Stat., 8 2339, as to ricrhts 
 to the use of water, was rather a voluntary recognition of a 
 pre-existing right of possession, constituting a valid claim to its 
 continued use, than the establishment of a new one.' The doc- 
 trine of prior appropriation, under the Act of Congress of 1856, 
 applies to the public lands of the United States.* 
 
 Persons who build an irrigation ditch upon the pul)lic land of 
 the United States become the owners thereof and of the right to 
 use the water first appropriated thereby, so long as they use the 
 same for irrigating purposes, and to the extent of such appropria- 
 tion; but when such ditch is enlarged by others, the original own- 
 ers not objecting, and its capacity increased, the parties so enlarg- 
 ing the ditch become owners therein and in the water appropri- 
 ated thereby, without any conveyance from the original owners.' 
 The extent of the prior appropriation was measured by the capac- 
 ity of the ditch used.' There was no requirement by custom that 
 surplus water should be returned to the stream.' And subsequent 
 appropriators of surplus water were liable to be deprived of its 
 use by the former appropriators, unless they had relinquished it 
 in some distinct manner.* The only legal appropriation that 
 could be made of water, or that could be authorized by the Letns- 
 lature of the Territory, was one for some beneficial jjurposu upon 
 
 ' Nev. Gen. Stat. g§ 362-365. 
 
 ^South Tuba Water & Min. Co. v. Rosa, 80 Cal. 333. 
 
 ^Sturr V. Beck, 133 U. S. 541, 33 L. ed. 761. 
 
 *Curti8 V. La Grande Water Co. (Or. :March 26, 1890) 10 L. R. A. 484. 
 
 ^Lehi Irrigation Co. v. Moyle, 4 Utah, 327. 
 
 ^Caruthers v. Pemberton, 1 Mont. 111. 
 
 ''Butte Canal cfc D. Co. v. Vaughn, 11 Cal. 143; Kidd v. Laird, 15 Cal. 161; 
 
 Dalton V. Bowker, 8 Nev. 190; Atchison v. Peterson, 87 U S 20 iVall' 
 
 507, 22 L. ed. 414; Barnes v. Sabron, 10 Nev. 217. 
 ^Wooiman v. Oarringer, 1 Mont. 535.
 
 446 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 the premises occupied by the appropriator. It could not be held 
 merely for future sale.' These acquired rights were subject to- 
 adverse title acquired under Statutes of Limitation," or to be con- 
 vej'ed by deed, or released by instrument insufficient to transfer 
 title.^ Tiie appropriator was entitled, as against subsequent 
 claimants, to receive the water in a condition, fit for the use in- 
 tended and in the quantity originally taken and needed.'' "Where 
 rights to water were acquired by appropriation after the passage 
 of the Act of Congress of 1866, they must be protected as against 
 an^^one who subsequently obtained title to the land from the- 
 government.* 
 
 A settler, whose homestead entry of public land had been made 
 over a year, and who has been in possession for three years, is a. 
 riparian proprietor of the land, as to another person who subse- 
 quently locates a water-right on the land.^ A settler on public 
 lands having a right to make a homestead entry, who has made no- 
 actual appropriation of the water thereon, except by ditches in- 
 defiidte in size and extent, and who makes no objection to the ap- 
 propriation of the water by another party, has no right to the- 
 water as against the latter, although he subsequently obtains a pat- 
 ent for the land.' 
 
 One who purchases vacant government land bordering on a nat- 
 ural stream, where an adjoining owner has built a dam in the 
 stream to block the water for purposes of irrigation, cannot be en- 
 joined from interfering with the dam so as to let the water run 
 through it and irrigate for himself, where the person building the 
 dam, though intending it for irrigating purposes, does not use the 
 water for this purpose, and where he shows no damage to himself 
 in any way.* If one goes upon the public lands of the United 
 States and appropriates wate)- for a lawful purpose and is permitted 
 to continue in its adverse enjoyment for more than ten years, such 
 
 ^Peregoy v. McKissick, 79 Cal. 572; Munroe v. Me, 2 Utah, 535. 
 
 -Yankee Jim's Union Water Co. v. Crary, 25 Cal. 509. 
 
 ^Barkley v. Tieleke, 3 Mont. 59. 
 
 *Crane v. Winsor, 2 Utah, 248; Atchison v. Peterson, 87 U. S. 20 Wall. 507, 
 
 23 L. ed. 414. 
 ^De Necochea v. Gartis, 80 Cal. 404. 
 ^Sturr V. Beck, 133 U. S. 541, 33 L. ed. 761. 
 
 ■>Tenem Ditch Go.-v. Thorpe (Wash. Terr. Jan. 29, 1889) 20 Pac. Rep. 58a 
 ^Peregoy v. McKissick, 79 Cal. 573.
 
 Chap. XX.] RIPARIAN RIGHTS IN PACIFIC STATES. 447 
 
 appropriation ripens into title by prescription wliieli cannot be dis- 
 turbed by one succeeding to the rights of the United States.' 
 
 The case of Coffin v. Left Hand Ditch Co., 6 Colo. 443, recog- 
 nizes appropriation as the law of the State of Colorado. Some of 
 the principles announced in that case are applicable to Nevada. 
 "It is contended by counsel for appellants," says the court, "that 
 the common-law principles of riparian proprietoi'sliip prevailed in 
 Colorado until 1876, and that the doctrine of priority of right to 
 water by priority of appropriation thereof was first recognized and 
 adopted in the Constitution. But we think the latter doctrine has- 
 existed from the date of the earliest appropriations of water witliin 
 the boundaries of the State. The climate is dry, and the soil, when 
 moistened only b}' the usual rainfall, is arid and un|)roductive; ex- 
 cept in a few favored sections, artificial irrigation for agriculture 
 is an absolute necessity. Water in the various streams thus ac- 
 quires a value unknown in raoister climates. Instead of being a 
 mere incident to the soil, it rises when appropriated to the dignity 
 of a distinct usufructuary estate, or right of property. It has al- 
 wa^'s been the policy of the national as well as the territorial and 
 state government, to encourage the diversion and use of water in 
 this country for agriculture ; and vast expenditures of time and 
 money have been made in reclaiming and fertilizing, by irrigation^ 
 portions of our unproductive territory. . . . The right to water 
 in this country by priority of appropriation thereof, we think it is 
 and always has been the duty of the national and state govern- 
 ments to protect. The right itself and the obligation to protect it 
 existed prior to legislation on the subject of irrigation. It is en- 
 titled to protection as well after patent to a third party of the land 
 over which the natural stream flows, as when such land is a part 
 of the public domain ; " and it is immaterial whether or not it be 
 mentioned in the patent and expressly excluded from the grant.' 
 
 TTnder the Colorado Constitution title to the unappropriated 
 waters of the State is vested in the public with a perpetual right 
 to their use in the people." The prior appropriator of waters 
 from a stream may change the point of diversion and the place of 
 
 ^TolmaiiY. Caseij, 15 Or. 83. 
 
 ^Eeno 8. M. & Reduction Works v. Stevenson, 20 Nev. 269, 4 L. R. A. 60. 
 
 * Whee'er v. Northern Colo. Irrigation Co. 10 Colo. 583.
 
 448 IMPOSED DUTIES, PERSONAL, [Part 11. 
 
 use, without affecting his riglits of priority, upon condition that 
 the change shall not injuriously affect others.' The Colorado 
 Statute of 1881 providing for the enlargement of a ditch for tlie 
 benefit of other persons applies only to ditches constructed for the 
 purpose of conveying water through certain property, and not to 
 a ditch constructed by the owner for the irrigation of his own 
 lands on which the ditch is situated.' 
 
 In Washington Territory, miners were authorized to make local 
 regulations on the subject of water rights, placer claims and town 
 lots, to be in force within their camps. Abandonment of use for 
 one year forfeited claim. Under the local laws and customs of 
 Washington Territory, not only the proprietors of mines and lands, 
 but any others, can make appropriations of water for the purposes 
 of any sort of business or trade, or even for the sale of it.' 
 
 In Idaho the Statute is like the provisions of the Civil Code of 
 California referred to below. Until a " complete diversion " is 
 made, that is, the beneficial use of the water at the place intended, 
 no claim can be made against a subsequent appropriator.* A prior 
 appropriator of the water of a stream, all of which he claims, has 
 used and needs for a useful purpose, has a right thereto superior 
 to that of one who has subsequently become a riparian proprietor ; 
 and a sale of water by one having a prior right thereto, if the sale 
 was not made from an unneeded surplus, but from that which he 
 liad actual use for, does not affect his rights as a prior appro- 
 priator.^ 
 
 California recognizes the right of appropriation for a beneficial 
 purpose, the right to cease with the use. The statute authorizes 
 the change of location, of use or of diversion, if not injurious to 
 others." The fact that an upper owner had obtained permission 
 from the county water commissioners to divert water, under Cal. 
 Stat. 1868, p. 112, gave him no right as against a lower owner who 
 was a prior appropriator.' 
 
 ^Fuller V. Swan River Placer Min. Co. 12 Colo. 12. 
 
 "^Downing v. More, 12 Colo. 316. 
 
 ^Tenem Ditch Co. v. Thorpe (Wash. Terr. Jan. 29, 1889) 20 Pac. Rep. 588. 
 
 *Laws Idaho 1881, pp. 267-271. 
 
 ^Drake v. Earhart (Idaho, March 5, 1890) 23 Pac. Rep. 541. 
 
 «Cal. Civ. Code, tit. VIII. g§ 1410-1422. 
 
 "* Lakeside Ditch Co. v. Crane, 80 Cal. 181; De Necochea v. Curtis, 80 Cal. 397,
 
 Chap. XX.] RIPARIAN RIGHTS IN PACIFIC STATES. 440 
 
 One who appropriates water without a compliance witli tlie rules 
 as to posting notices required by Cal. Civ. Code, §§ 1415-1419, 
 acquires the right to the use of the water as against subsequent 
 claimants who have not complied with such rules.' A diversion 
 of water without compliance with these requirements gives a right 
 to continue the diversion against the pre-emptioner whose right of 
 purchase vests after the diversion is fully completed, but only to 
 the extent and in the manner of such actual and completed di- 
 version." 
 
 Plaintiff suing for deprivation of water for irrigation, causing 
 loss to him, must, under Cal. Code Civ. Proc, § 1835, show bj sat- 
 isfactory evidence that he had a right to use the waters of which he 
 alleges he was deprived, during the times alleged ; and he must also 
 prove an interference with such right and a consequent iivjury.' 
 
 A deed conveying to a mining company the right to erect and 
 maintain a reservoir upon the land of the grantor, in consideration 
 that the grantor shall have the right to appropriate to his own use, 
 and conduct wherever he shall desire, so much of the waste water 
 flowing from the reservoir as he may see fit, but not restricting 
 the disposition which the company shall make of the water, is not 
 violated by such company allowing another person to tap its ditch 
 and conduct the water therefrom, at a point between its mine and 
 the land of the grantor, although the supply of waste Avater is 
 thereby rendered insufficient for the purposes of the grantor.* 
 
 A person having the right to the exclusive use of water flowing 
 through a ditch constructed across his land, at any point on said 
 land where he may desire to turn it for irrigating purposes during 
 the spring and summer months, has the preference during the 
 season when the condition of his premises is such as to require the 
 use of the water for the purposes mentioned, but has no right to 
 carelessly waste it at any time, or to use it extravagantly or negli- 
 gently ; and at other times the owner of the ditch has the full and 
 free right to use it ; and each is required to respect the rights and 
 interests of the other regarding the matter in every particular.* 
 
 ^Burrows v. BuiTotcs, 82 Cal. 564. 
 "^De Necocheo. v. Curtis, «0 Cal. 397. 
 ^Sharp V. Hoffman, 79 Cal. 404. 
 ^Bryan v. Idalio Quartz Min. Co. 73 Cal. 249. 
 ^Eusion V. Bybee, 17 Or. 140, 2 L. R. A. 568. 
 29
 
 450 IMPOSED DUTIES, PERSONAL. [Part 11. 
 
 Under a judgment defining the waste water of a stream running 
 through a certain named ranch as being "that portion of said 
 waters which is not necessary to irrigate said ranch and for house- 
 hold jDurposes thereon," the person having the right to such waste 
 water is entitled to all the water not reasonable and necessary for 
 the purj)oses of that particular ranch; and the use by the owner of 
 such ranch of a greater quantitj^ than is necessary, or a diversion 
 thereof for other purposes, is a violation of such right for M^hich 
 an action will lie.' 
 
 Where a grantor of a water right for the purpose of irrigating 
 lands, agreeing to bring the water through a main ditch, and to- 
 construct a box or gate through which to pass it into a ditch to be- 
 constructed by the grantee, is shown to have supplied the water at 
 the pfece agreed upon, evidence that he constructed his ditch neg- 
 ligently and unskillfully is immaterial.'' A recorded contract sell- 
 ing a water right for the purpose of irrigating lands, providing 
 that the water furnished under the agreement is intended to be an 
 appurtenant to, and the right thereto shall be transferable only 
 with, the land; and that the agreement and the covenants of the 
 grantee for himself and his assigns to jDay a certain sum annually ,. 
 on default of which the contract to be void, shall run with and 
 bind the land, — is not such a covenant as will run with the land,, 
 under Cal. Civ, Code, §§ 1460-1466, so as to sustain a personal 
 judgment against a grantee of the land, although it creates a lien, 
 upon the land.' 
 
 A riparian owner may not authorize, as against a lower propri- 
 etor, a company to take water from the stream to be conducted to 
 a distance and sold.* But on enjoining such upper riparian owner 
 from diversion of the water for the purpose of sale or of use on non- 
 riparian lands, the injunction should not compel the closing up of 
 the canal, so as to prevent its use for diverting the water for legiti- 
 mate purjDoses or for carrying off surplus water, although it was 
 constructed for unauthorized diversion of the water.^ 
 
 In an action by a lower riparian owner against an upper owner 
 to determine their respective rights as to the diversion of the water 
 
 ^Byrne v. Crafts, 73 Cal. 641. 
 
 2 ^Fresno Canal d Irrig. Co. v. Dunbar, 80 Cal. 530. 
 *EeUbron v. Fowler Switch Canal Co. 75 Cal. 426. 
 ^Heilbron v. 76 Land & Water Co. 80 Cal. 189.
 
 Chap. XX.] USE OF WATERS TO SlPl'LY CITIES. 451 
 
 into ditches, where, in view of the character of tlie soil, the ditchetj 
 are apt to change in size, a finding as to the amount of water which 
 plaintiff is entitled to have run past defendant's ditch should de- 
 termine the inches or gallons of water, iustead of fixing the width, 
 grade and depth of the ditch.' A judgment in an action for the 
 diversion of a stream, restraining the defendant from interfering 
 with the pLaintifi''s dam or " turning out any of tlie waters . . . 
 after they shall have reached plaintiff's dam, so long as the quan- 
 tity shall not exceed 25 inches," — does not, in a suhsequent action, 
 preclude the defendant from proving a prior appropriation above 
 the plaintiff's dam.' 
 
 Section o±—Us6 of Waters to Supply Cities. 
 
 Where one has diverted the water from a stream, and consumes 
 it for the purpose of supplying the wants of a neighboring town, 
 the diversion is rendered unlawful by the fact that it is for an ex- 
 traordinary or artificial use, and is not restored to its natural chan- 
 nel, where it is accustomed to flow.' ISTo person has a right to 
 cause such diversion, and it is a wrongful act, for which an action 
 will lie by the lower riparian proprietor without proof of any spec- 
 ial damage.* The injury done the riparian owner in such a case 
 is an invasion of his general right to have the watercourse flow in 
 its natural channel, through his lands, operating to interrupt a 
 possible water-power, or to suspend an agency capable of impart- 
 ing fertility to the soil through which it passes, or other damage 
 of a general character.' It was decided in the Alabama cases 
 cited that a riparian proprietor is entitled to nominal damages for 
 any disturbance of his right by diversion of the waters from the 
 stream, without returning them to the natural channel, although 
 he offers no evidence of actual or special damage. The diversion 
 in those cases was for the purpose of suj^plying the inhabitants of 
 
 ' Lake&ide Ditch Co. v. Crane, 80 Cal. 181. 
 
 "^WUson V. Devine, 80 Cal. 385. 
 
 ^Heilbron v. 76 Land & Water Co. 80 Cal. 189. 
 
 *NewhaU v. Ircmn, 8 Cusli. 59.5, 54 Am. Dec. 790; Gancood v. New York 
 
 Cent. & II. R. R. Co. 83 N. Y. 400; Lilling v. Murray, 6 Ind. 324, 63 
 
 Am. Dec. 385. 
 ^Parker v. Oriswold, 17 Conn. 288, 42 Am. Dec. 739; Stein v. Burden, 20 
 
 Ala. 127, 65 Am. Dec. 394; S. C. 24 Ala. 130, CO Am. Dec. 453; Burden v. 
 
 Stein, 27 Ala. 104.
 
 452 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 a citj with water through the medium of a system of waterworks. 
 " The law," it was said bj Goldthwaite, e/., " in the absence of any 
 special injury, gives nominal damages [for the invasion of every 
 legal right], on the ground that the undisturbed enjoyment or 
 continuation of such acts, without the consent of the owner, would 
 ripen into evidence of a right to do them.'" 
 
 The owner of land over which a stream of water flows has a 
 right thereto without diversion, interruption or diminution of that 
 element so indispensable to life, both animal and vegetable, and so 
 useful as propelling power for machinery. The law recognizes a 
 watercourse as a subject of property, and guards the rights of the 
 owners thereof with the same care that it extends to all other 
 things that are the subjects of exclusive ownership. The right 
 which the owner of land has to a watercourse flowing over it is in 
 the nature of a freehold right, and it cannot be taken from him 
 constitutionally for public use without just compensation." This 
 right, being thus secured by the Constitution and laws, cannot be 
 indirectly taken away, while protected from direct' deprivation. 
 The supreme power in the State cannot enact a law M^hicli will 
 authorize the diminution or diversion of a stream from its natural 
 channel for public purposes without providing adequate compen- 
 sation for the right — the property to be so appropriated to public 
 use.^ 
 
 While a city or borough, or a company having the right of emi- 
 nent domain, may take a spring or stream of water to supply a 
 municipality, it can only do so by making compensation to those 
 who are deprived of the use of the water, as provided by the Con- 
 stitution. A taking without compensation is a trespass, as much 
 so as the taking of land by a railroad company to construct its 
 road, without making compensation or filing a bond with security 
 as provided by law. "Where the power to take exists, it must be 
 exercised according to law ; if it is not, the corporation so taking 
 becomes a trespasser, and may be proceeded against as such. 
 
 It is a mistake to assume that the purchase of an acre of land 
 
 ^Stein V. Burden, 24 Ala. 148. 
 
 Gardner v. Mwhurgh, 2 Johns. Ch. 162, 1 N. Y. Ch. L, ed. 333; Canal 
 
 Comrs. V. Peojile, 5 Wend. 423; Ex parte Jennings, 6 Cow. 518; People v. 
 
 Piatt, 17 Johns. 195; 2 Hilliard, Real Prop. Ill; McCord v. High, 24 
 
 Iowa, 336. 
 '^McCord V. High, 24 Iowa, 336.
 
 Chap. XX.] USE OF WATERS TO SUPPLY CITIES. 453 
 
 will give a company an absolute right to a spring of water thereon, 
 for the purchase of land including a spring will not justify divert- 
 ing the water flowing therefrom from its natural channel to sup- 
 ply a city with water. By the purchase of an acre of land oit 
 which a spring is situate the company acquires the rights of a ri- 
 parian owner; neither more, neither less.* What its rights as 
 riparian owner are were sufficiently defined in the recent case of 
 Haupts Appeal^ 125 Pa. 222, where it was saicf: "If the author- 
 ity of the plaintiff were measured by its rights as riparian owner 
 it would be slight enough. It might indeed use the water for the 
 domestic purposes incident to the ten acres of land. If there was 
 a tenant thereon he could use it for watering his stock and for 
 household purposes ; for any useful, necessary and proper purpose 
 incident to the land itself, and essential to its enjoyment. But 
 that the rights of a riparian owner would justify the plaintiff in 
 carrying the water for miles out of its channel to supply the Bor- 
 ough of Ashland with water is a proposition so palpably erroneous 
 that it would be a waste of time to discuss it.'" 
 
 The purchase of an acre of land, including a spring, gives the 
 company the rights of a riparian owner. But water docs not 
 pass by the deed beyond its reasonable use by the vendee as a ri- 
 parian owner. As was said in Haupfs Appeal^ 125 Pa. 222 : 
 '* There can be no such thing as ownership in flowing water; the 
 riparian owner may use it as it flows; he may dip it up and be- 
 come the owner by confining it in barrels or tanks, but so long as 
 it flows it is as free to all as the light and air." Such rights will 
 not be a justification for the diversion of the water from its nat- 
 ural channel to supply a city. Thus, the City of Newark has no 
 special rights in the water of the Passaic River, either by reason 
 of its riparian ownership or by grant from the State to take its 
 w^ater supply from any source, so as to enable its aqueduct board, 
 by showing an apprehended distinct injury to the city, to maintain 
 
 ^Paine v. ^yoolU, 108 Mass. 173; Potter v. Howe, 141 Mass. 3r)8, 2 New Eng. 
 Rep. 167; Sicindon Watericorks Co. v. Wilts & B. Canal Nav. Co. L. H. 7 
 H. L. G97; Acquackanonk Water Co. v. Watson. 20 N. J. Eq. 30(5; Hall v. 
 Ionia, 38 Mich. 493; Stainlon v. Metropolitan Board of Works, 23 Beav. 
 225, 2G L. J. N. S. Ch. 300. 
 
 ^ Wilts & B. Canal & N. Co. v. Swindon Watenoorks Co. L. R. 9 Ch. 451; 
 Johnson v. Boston, 130 Mass. 452; Fay v. Sfilem & D. Aqueduct Co. Ill 
 Mass. 27; Bush v. Trowbridge Water Works Co. L. R. 10 Cli. 459; Hough 
 V. Doylestown, 4 Brewst. 333; Stone v. Yeovil, L. R. 1 C. P. Div. 691.
 
 454 IMPOSED DUTIES, PEKSONAL. [Fart II. 
 
 an individual suit to restrain a city above it from discharging its 
 sewer into the river.' If a company has the right to divert it 
 under its pov;er of eminent domain, the exercise of such right in- 
 volves compensation to those who are or may be injured by such 
 diversion. And it can only take the water by the exercise of this 
 right and compensating the riparian owners.- 
 
 A corporation cannot appropriate, to its own use, waters col- 
 lected in one of the great ponds of the State, which is situated 
 within a certain township in which a portion of the pond granted 
 is also situated, under a charter granting the right to " take the 
 waters of Great Pond . . . and the waters of any spring or ai'te- 
 sian or driven wells" within such town "and thcM^ater rights con- 
 nected therewith " excepting a certain spring ; but it may appro- 
 priate waters in springs, etc., within the watershed of such pond 
 which have not yet reached it.' 
 
 A person cannot draw water from a pond b}^ percolation, if he 
 has no right to draw it therefrom directly.' A corporation, al- 
 though a riparian proprietor, cannot, to carry water to a distance, 
 use a gallery which does not gather the water naturally belonging 
 to the land, but, by being located upon the shores of the pond, 
 when its water is pumped out a vacuum is created, which the vol- 
 ume of the water in the pond within percolating distance will al- 
 ways fill.^ 
 
 ^Newark Aqueduct Board v. Passaic, 45 N. J. Eq. 393. 
 
 ^Lord V. Meadville Water Co. 135 Pa. 122, 8 L. R. A. 202; Gardner v. Neic- 
 burgh, 2 .Johns. Cli. 162, 1 N. Y. Ch. L. ed. 332; Eaton v. Boston, C. & M. 
 R. Co. 51 N. H. 504, 510; Meyers v. Si. Louis, 8 Mo. App. 266, 275; Hard- 
 ing V. Stamford Water Co. 41 Conn. 87; McCord v. High, 24 Iowa, 336; 
 Cooper \. Williams, 5 Ohio, 391; Nevins v. Peoria, 41 111. 502; Homochitts 
 River Comrs. v. Withers, 29 Miss. 21; Bailey v. Woburn, 126 Mass. 416, 
 418. 
 
 ^Proprietors of Mills v. Braintree Water Supply Co. 149 Mass. 478, 4 L. R. 
 A. 272. iSee Greenlenf-v. E'rancis, 18 Pick. 117; Ocean Grove Camp Meet- 
 ing Asso. V. Asbury Park Comrs. 40 N. J. Eq. 447, 2 Cent. Rep. 180; Blood- 
 good V. Ayers, 37 Hun, 356; Chase v. Silverstone, 62 Me. 175; Chasemore 
 V. Richards, 7 H. L. Cas. 349. 
 
 ^Proprietors of Mills v. Braintree Water Supply Co. 149 Mass. 478, 4 L. R. 
 A. 272. 
 
 '^Harf V. Jamaica Pond Aqeduct Corp. 133 Mass. 488; Bailey v. Woburn, 126 
 Mass. 416, 418; Cowdrey v. Woburn, 136 Mass. 409; JStna Mills v. Wal- 
 tham, 126 Mass. 422, 425; ^tna Mills v. Brookline, 127 Mass. 69, 71; Wil- 
 son V. Neio Bedford, 108 Mass. 261; Grand Junction Canal Co. v. Shugar, 
 L. R. 6 Ch. 483; Emporia v. Soden, 25 Kan. 588, 37 Am. Rep. 265, and 
 note; Swindon Watencorks Co. v. Wilts c£ B. Canal Nav. Co. L. R. 7 H. 
 L. 697, affirming L. R. 9 Ch. 451; Proprietors of Mills v. Braintree Water 
 Supply Co. 149 Mass. 478, 4 L. R. A. 272.
 
 CHAPTER XXI. 
 
 REMEDY FOR DIVERSION OR OBSTRUCTION OF WATERCOURSE. 
 
 Sec. 53. Remedy for Diversion of Flotuing Water. 
 
 8ec. 54. Obstructions to the Flow of Waters. — Bridges over Flowing 
 
 Waters. 
 Sec. 55. Relief in Case of Obstruction to Flow of Stream. 
 
 a. By Indictment or Information. 
 
 b. Individual Right to Abate. 
 
 c. Private Right of Action for Obstructing Watercourse. 
 
 d. Jurisdiction of Equity over Obstruct io7i of Flowing Water, 
 
 Section ^^.— Remedy for Diversion of Flowing 
 
 Water. 
 
 Where one, witliont committing a trespass upon the propert}'- of 
 another, can put a stop to a wrongful diversion of water, to the 
 use of which he is entitled, he may do so, if he inflict thereby no 
 injury upon third parties. Thus where a person has been deprived 
 of a portion of a stream flowing through his land by its diversion 
 through an artificial channel made by a road supervisor in the 
 •construction of a crossing for the highway over the stream, lie may 
 ■dam up the artificial channel and thus restore the flow of the water 
 to the natural one.' 
 
 Subject only to the intervention of the public to take under the 
 right of eminent domain, the mill owner can enjoin any person 
 who so far diverts the water from coming to his mill as to dimin- 
 ish his supply substantially; and while this does not prevent the or- 
 dinary use for domestic purposes, so long as tlie surplus is returned 
 to the stream, yet when it is so used as to cause a substantial dimi- 
 nution, the court will interpose," A corporation cannot without 
 condemnation proceedings take water upon any plea that it is for 
 
 ^McCord V. High, 24 Iowa, 336. 
 
 ^Cammings v. Barrett, 10 Cash. 186; Elliot v. Fitchhurg R. Co. 10 Cusli. 193; 
 Ca/1^ V. Daniels, 5 Met. 237, 8 Met. 476; Wed Roxbury v. Stoddard, 7 
 Allen, 169; UatcJiv. Dwight, 17 Mass. 289, 296; Drake v. Ilimilton Woolen 
 Co. 99 Mass. 579, 581; Lowell v. Boxion, 111 Mass. 464, 469; 3 Kent, Com. 
 441; Johnson v. Jordan, 2 Met. 239. See Lund v. New Bedford, 121 Mass. 
 289. 
 
 I
 
 456 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 the benefit of the public, on any account.' The riparian owners 
 are in such an attempt entitled to relief by injunction." 
 
 Wliere the damage the defendant is doing works to the irrevo- 
 cable injury of the plaintiffs, this belongs to that class of cases 
 where the court will interfere by injunction.' If the complainant 
 makes proof of the fact that he has suffered any special perceptible 
 damage by the diversion of the water in question, or that he was 
 making any use of it, or that it was of any particular value to him, 
 he is entitled to an injunction perpetually restraining the defendant 
 from a continuance of his wrongful act of diversion.* But where 
 he is taking no advantage of his usufructuary right, but allows the 
 water to flow by unutilized, and it appears to be of no special value 
 to him, he will not be permitted to call for equitable interference 
 in his behalf, further than to vindicate his right, and prevent a loss 
 of it by adverse user and lapse of time. A court of equity will 
 use its discretion, in such case, not to interfere by injunction, ex- 
 cept for this purpose, but leave the complainant to his remedy at 
 law.' 
 
 A riparian proprietor owning to the center of a stream is en- 
 titled to the aid of equity to prevent a diversion of the waters 
 
 ^Lake View v. Rose Hill Cemetery Go. 70111. 191; Grand Junction Canal Co. 
 
 V. Shugar, L. R. 6 Ch. 483; Emporia v. Soden, 25 Kan. 588, 37 Am. Rep. 
 
 265, and note. See also Swindon Waterworks Go. v. Wilts & B. Canal Nav. 
 
 Co. L. R. 7 H. L. 697. 
 ^Proprietors of Mills v. Braintree Water Supply Co. 149 Mass. 478, 4 L. R. A. 
 
 272. 
 
 Boston Water Power Co. v. Boston & W. B. Corp. 16 Pick. 512, 525; Ballou 
 V. Bopkmton, 4 Gray, 324; Hart v. Jamaica Pond Aqueduct Corp. 13S 
 Mass. 488; Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 1 L. R. A. 
 466; Watuppa Resermir Co. v. Fall River, 134 Mass. 267; Kenison v. Ar- 
 lington, 144 Mass. 456, 4 New Eng. Rep. 340; Grand Junction Canal Co. 
 V. Shugar, L. R. 6 Ch. 483; Emporia v. Soden, 25 Kan. 588, 37 Am. Rep. 
 265, and note; Merrifield v. Lombard, 13 Allen, 16; Woodward v. Worcester, 
 121 Mass. 245; Silver Spring B. & D. Co. v. Wanskuck Co. 13 R. I. 611; 
 Higgins v. Flemington Water Co. 36 N. J. Eq. 538; Atty-Gen. v. Birming- 
 ham, 4 Kay & J. 528; Columbus v. Hydraulic Woolen Mills Co. 33 Ind. 
 435; Ormerod v. Todmorden J. S. Mill Co. L. U. 11 Q. B. Div. 155; Smith 
 V. Rochester, 92 N. Y. 463; Clowes v. Staffordshire Potteries Waterworks 
 Co. L. R. 8 Ch. 143, 4 Eng. Rep. (Moak's notes) 821; Metropolitan Asylum 
 Hist. V. Hill, L. R. 6 App. Cas. 193, 34 Eng. Rep. (Moak's notes) 378. 
 
 ^Emporia v. Soden. 25 Kan. 58S, 37 Am. Rep. 265; Garwood v. New York 
 Cent. dkH. R. R. Co. 83 N. Y. 400, 38 Am. Rep. 452; Gould, Waters, 
 §214. 
 
 ^Franklin V. Pollard Mill Co. 88 Ala. 318; Smith v. Rochester, 93 N. Y. 463; 
 Corning v. Troy Iron & Nail Factory, 40 N. Y. 220, per Woodruff, /. / 
 Clinton v. Myers, 46 N. Y. 511, 7 Am. Rep. 373, 379.
 
 Chap. XXL] REMEDY FOK DIVERSION OF FLOWING WATER. 457 
 
 from their natural channel, and this notwithstanding that he does 
 not himself use the water-power, and has sustained but small pe- 
 cuniary damage.' lie is entitled to an injunction without first 
 establishing his right at law by recovering a judgment in damages.' 
 In an action to resti-ain the diversion of water from a stream, an 
 allegation to the effect that the plaintiff was in a position to use or 
 distribute the water was unnecessary.' 
 
 Where a riparian owner seeking an injunction against diversion 
 of the water is shown to make no special use of the stream, and it 
 appears that the water is of great importance to defendant, defend- 
 ant will not be enjoined from consuming water which plaintiff 
 does not use, but may be restrained from using the water to the 
 sensible damage of plaintiff for any purpose for which he may, at 
 present or in the future, use the water.* 
 
 In Garwood v. Nexo York Cent. & R. R. R.Co., 83 N.Y. 400, 38 
 Am. Rep. 452, the bill was filed to prevent a railroad company, as 
 riparian owner, from diverting water of a running stream by pipes 
 and reservoirs, for the use of its locomotive engines, to the detri- 
 ment of a lower proprietor, who was a mill owner, and who claimed 
 that the diversion diminished the grinding power of his mill. The 
 defendant was restrained only " from diverting the water to the 
 injury of the plaintiff." Upon appeal by the plaintiff, the judg- 
 ment was affirmed by the New York Court of Appeals.* The 
 principle of this and other analogous decisions is that the extraor- 
 dinary process of injunction will be used by the court of chancery 
 only so far as it is necessary to vindicate or enforce valuable rights 
 of parties litigant, and will ordinarily not be allowed where the 
 injury sought to be restrained is only trivial in its nature. But a 
 licensee from the State of the right to use the waters of a great 
 pond will be protected in such right as against one who is remov- 
 ing such water without authority, especially where the licensee has 
 erected valuable mills and has had the exclusive use and control of 
 the waters in their operation for a period of sixty -five years." In- 
 
 1 Wem V. Orecjon 1. & 8. Co. 13 Or. 496. 
 
 ''Lux V. Eaggin, 69 Gal. 255. 
 
 ^" Moore v. Clear Lake Water Works, 68 Cal. 146. 
 
 *mbricht-v. Eufaula Water Co. 86 Ala. 587. 
 
 »See also Earl of Sandicieh v. Great Northern R. Co. L. R. 10 Ch. Div. 707. 
 
 ^Proprietors of Mills v. Braintree Water Supply Co. 149 JIass. 478, 4 L. R. 
 A. 272.
 
 458 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 junction will lie to prevent the wrongful withdrawal of water from 
 a great pond to the injury of a mill owner, as an action at law 
 would compensate only for damages already inflicted at the time 
 suit was brought.' 
 
 But when a water-supply company has established its works in 
 good faith, under a claim of right under its charter; and the ripa- 
 rian jDroprietors have unnecessarily delayed to bring their bill until 
 after the defendant has incurred large expense, and an injunction 
 -as prayed for by the plaintiffs would impose great loss upon the 
 defendant and would be a serious inconvenience and injury to the 
 inhabitants of a town, — tlie plaintiffs have been guilty of laches, and 
 have lost their rights in equity, and must look to their remedy at 
 law,' Actions of tort have been the usual remedies for unauthor- 
 ized proceedings for obtaining and furnishing a public water sup- 
 ply.' If the defendant is acting ultra vires, the proper remedy 
 is by an information brought by the attorney-general.* 
 
 A riparian owner may grant a part of his estate, not abutting on 
 the stream, and, as appurtenant thereto, a right to draw water from 
 the stream through his remaining land; and for any diversion of 
 the natural flow of the stream disturbing snch right, the grantee 
 may maintain an action.^ But one is liable for diverting water 
 alone or jointly with others, under a lease from third persons, or 
 for its diversion by others under a lease from him.' 
 
 In a suit to enjoin defendants from diverting the water of a 
 stream, a count in the complaint alleging that the stream has nat- 
 ural and well-defined bed, banks and channel from its source to, 
 upon and across the lands of the several j)laintiflEs when unob- 
 structed, is not overcome by an allegation that the stream flows 
 upon and across the lands owned by certain named plaintiffs, and 
 
 ^Proprietors of Mills v. Braintree Water Suj)ply Co. 149 Mass. 478, 4 L. R. 
 
 A. 273. 
 ^Cooper V. Huhhmk, 7 Jur. N. S. 457; Bankard v. Honghton, 27 Beav. 425, 
 
 7 Week. Rep. 197; Birmingham Canal Co. v. Lloyd, 18 Ves. Jr. 515; 
 
 Fuller V. Melrose, 1 Allen, 166. 
 'See Wilson v. Lynn, 119 Mass. 174; Wamesit Power Co. v. Allen, 120 Mass. 
 
 352; Warren \. Sj)encer Water Co. 143 Mass. 9, 3 New Eng. Rep. Ill; 
 
 Kenison v. Arlington, 144 Mass. 456, 4 New Eng. Rep. 340; Lund v. New 
 
 Bedford, 121 Mass. 286; Pickman v. Peabody, 145 Mass. 480, 5 New Eag. 
 
 Rep. 394. 
 ^AttyOen. v. Jamaica, Pond Aqueduct Corp. 133 Mass. 361. 
 ''St. Anthony Falls Water-Power Co. v. Minneapolis, 41 Minn. 270. 
 ^Clement v. Gould, 61 Vt. 573.
 
 Chap. XXI.] KEMEDY FOR DIVEliSION OF FLOWING WATER. 459 
 
 to some extent, by such natural flow, seepage and percolation, irri- 
 gates and waters portions of the lands of the other plaintiffs.' It 
 is not a misjoinder of causes of action for a complaint in trespass 
 to allege that defendant entered plaintiff's close with force, and 
 diverted the waters of a certain spring, and frightened his wife. 
 Such additional facts are matters of aggravation.' 
 
 Proof that, after defendant began taking water from a certain 
 ■creek, there was less water in the stream during the snmmer months 
 than before, is admissible in an action for damages for withdraw- 
 ing water from such stream.^ But evidence of injuries, caused 
 by the diversion, to lands of the plaintiff not bordering on the 
 stream, and to his cattle pastured thereon, is inadmissible.* 
 
 In an agreement by one party to pay another for the use of the 
 Avater of a stream during seasons when there is not enough for all 
 parties, a recital that the former is the owner of the surplus waters 
 will not estop the latter from claiming ownership of the waters 
 of the stream, so as to defeat an action by him to restrain a diver- 
 sion.* A deed of lands reserving a water right, " without preju- 
 dice to any rights which " the grantee now has, is not an estopjiel 
 as to any of the grantee's existing rights, or an admission by him 
 of the grantor's title or right to the water reserved, or of the truth 
 ■or accuracy of his description.* 
 
 In an action by a lower riparian owner to restrain the diversion 
 by an upper owner of the waters of a stream, a decree ordering 
 that the water be allowed to flow unrestricted to plaintiff's lands in 
 the natural flow, except a given number of inches previously ap- 
 propriated by defendant, is erroneous, since defendant would there- 
 by be deprived of the reasonable use of any part of the water for 
 irrigation or other necessary purpose as riparian proprietor.' A 
 diversion being unlawful, it is not to be presumed that it will be 
 continued; hence no foundation is laid for a recovery of damages 
 that might be sustained in the future.' 
 
 Wfnirchilly. Latter, 84 Cal. 233. 
 
 ^Razzo V. Vanii (Cal. May 28, 1889) 21 Pac. Rep. 762. 
 
 'Garwood v. Neto York G. & H. R. R. Co. 116 N. Y. 649. 
 
 ^Ueinlen v. Fresno Canal & I. Co. 68 Cal. 35. 
 
 ^McLear v. Uapgood (Cal. Sept. 10, 1890) 24 Pac. Rep. 788. 
 
 «Lawre7iee v. Whitney, 115 N. Y. 410, 5 L. R. A. 417. 
 
 ■> Van Bibber v. Jlilfon, 84 Cal. 585. 
 
 ^Vline V. New York Cent. & H. R. R. Co. 101 N. Y. 89. 2 Cent. Rep. 116; 
 SUsby Mfg. Co. v. State, 104 N. Y. 562, 6 Cent. Rep. 812.
 
 460 IMPOSED DUTIES, PERSONAL. [Part II» 
 
 Section o^.—OhstriictioTis to the Flow of Waters.— 
 Bridges over Flowing Waters. 
 
 It is the right of any owner of land fronting on a flowing stream 
 to have it continue to flow in its natural channel; and any obstruc- 
 tion placed in such a stream, which so diverts it as to cause an in- 
 jury to such land, is an injury for which an action will lie, even if 
 the person placing the obstruction should have used great care and 
 have been unable to foresee the consequences.' Every owner of 
 land through which a stream of water flows has presumptively a. 
 right against owners of land below him to have the stream flow 
 from his land, in its accustomed course, unobstructed. Such right 
 is infringed by construction of a dam below which flows the stream 
 back upon the land which naturally it would leave.'' 
 
 The accustomed course of a natural stream which a riparian 
 owner is entitled to have preserved is the natural and apparently 
 permanent course existing when the right is asserted or called in 
 question.' Awell defined watercourse of running water, although 
 dry at certain seasons, is within the doctrine against obstructions.* 
 
 A riparian proprietor has rights in a brook or watercourse on 
 the rear line of his land, which give him a cause of action against 
 any person who prevents the flow in that watercourse, or the flow 
 of water from his land by that watercourse, or who befouls the 
 same.* A person who obstructs a watercourse or channel on his 
 farm, in which the surface water has been accustomed to flow for 
 many years, is liable for the damages thereby occasioned to a lower 
 proprietor.* 
 
 There can be no prescriptive right to maintain or continue an 
 obstruction to the navigation of a public stream.'' Neither time 
 nor a grant to erect a dam would confer the right to obstruct the 
 navigation of a river.* So one who obstructs materially a navi- 
 
 ^Annendaiz v. Stillman, 67 Tex. 458; Wheatley v. Chrisman, 24 Pa. 398;. 
 
 Pennsylvania R. Co. v. Miller, 112 Pa. 34, 3 Cent. Rep. 127. 
 ■^Scriver v. Smith, 100 N. Y. 471, 1 Cent. Rep. 763. 
 ^Withers v. Purchase, 60 L. T. N. S. 819, 40 Alb. L. J. 214. 
 *Bailey v. Schnitzius, 45 N. J. Eq. 179, 11 Cent. Rep. 737. 
 ^Stanch field v. Neidon, 142 Mass. 110, 2 New Eng. Rep. 526. 
 ^Rhoads v. Davidheiser, 133 Pa. 226. 
 ■^ Olive V. State, 86 Ala. 88, 4 L. R. A. 33. 
 *Angell, Watercourses, § 354; Stoughton v. Baker, 4 Mass. 522; VoogM r. 
 
 Winch, 2 Barn. & Aid. 662; Woolrych, Waters, 270.
 
 Chap. XXI.] OBSTRUCTIONS TO THE FLOW OF WATEliS. 4G1 
 
 ^able stream without the consent of the Legislature is liable for 
 the consequences.' 
 
 A riparian proprietor has a right to protect his land from a 
 threatened change from the sea or in the channel of an adjoining 
 stream bj erecting along the border thereof a bulkhead as high as 
 the necessity demands." And the owner of land on a river or run- 
 ning stream has the right to construct embankments for protection 
 from currents or otherwise benefiting it, subject to the duty not to 
 occasion material injury to others situated ujjon the same stream.^ 
 But such owner has no right to so elevate the natural bank that 
 it will, at the time of ordinary floods, cause the swollen current 
 to overflow and destroy the lands of another proprietor.* 
 
 A proprietor who sells land fronting upon a river, on whicli is 
 ■erected a bank or wall to prevent the overflow of the land further 
 back occupied by a tenant, is not, in the al)sence of express 
 contract to keep up the bank, liable for the destruction of 
 the crops of such tenant caused by the failure of the grantee to 
 keep the wall in repair; and a railroad company purchasing land 
 along a river bank having upon it a bank or wall to keep back 
 floods or high tides only assumes the resj)onsibility resting on its ven- 
 dor as to keeping up or maintaining such wall or dam as a protection 
 to other adjoining proprietors as well as to the occupants of the 
 low lands situated further back." 
 
 Where, by long-coniinued natural accretion of gravel, the bed 
 of a river, and consequently the flow of water, have become per- 
 manently altered, a riparian owner has no right, by removing the 
 accretion, to restore the flow of water to its former state as to ve- 
 locity and direction.* 
 
 Where a stream flows through two adjoining tracts of land, the 
 property of different owners, and in the bed of the stream on the 
 
 ^AMna Ferry Co. v. The Imperial, 38 Fed. Rep. 614, 3 L. R. A. 234, note; 
 Atlee V. Northwestern Union Packet Co. 88 U. S. 21 Wall. 3«'J, 22 L. ed. 
 619. 
 
 ^Barnes v. Marshall, 68 Cal. 569; Oerrish v. Clough, 48 N. H. 9; Rex v. Pag- 
 ham, 8 Barn. & C. 355; Rex v. Trafford, 1 Barn. & Ad. 874, 8 Bing. 204. 
 
 ^ ^Crawford v. Ramho, 44 Ohio St. 279, 4 West. Rep. 445; Avery v. Empire 
 Woolen Co. 83 N. Y. 582; Harding v. Whitney, 40 lud. 379; Rix v. John- 
 son. 5 N. H. 520; Durwell v. Uobson, 12 Gratt. 322. 
 
 ^Savannah, F. & W. R. Co. v. Lawton, 75 Ga. 192. 
 
 '^Withers v. Purchase, 60 L. T. N. S. 819, 40 Alb. L. J. 214.
 
 462 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 upper tract there is a natural ledge of rock whicli retards the 
 flow of the water so as to protect the lower tract from overflow, 
 the proprietor of the ujDper tract has no right to remove such ledge 
 of rock, and thereby so vary the natural flow of the stream as to 
 occasion damage to the lower tract by causing water and sand to 
 overspread portions of the same, which, but for the alteration, 
 would not be so affected. And this is true, although there be no 
 damage at the point where the stream enters the lower tract, but 
 only further down.' 
 
 One removing obstructions from a stream, under a license so to 
 do, for the privilege of turning other waters into it, and not for 
 the right to use the natural flow of the water, acquires thereby no 
 holding adverse to a lower holder who has the right to use the 
 natural flow of the water." And he who obtains from another 
 who has the right to conduct through a natural stream waters arti- 
 ficially carried to it, a license to remove obstructions in the stream 
 and to turn water into it for his own use, is not entitled to take 
 out more water than he turns into it, to the prejudice of the rights 
 of the other party, who is a lower owner.^ 
 
 A grantee of water privileges, who by express stipulation is 
 without right to dam up the water so as in any manner to over- 
 flow or injure a certain spring on the premises, cannot obstruct or 
 affect it injuriously by erecting a dam or embankment across its 
 outlet, and compressing the water in its passage througli the same, 
 within a narrow and confined channel, although at the date of the 
 grant the spring was not flowing naturally, but had artificial works 
 across the outlet which retarded the flow. The owner, not having 
 covenanted to keep his spring in an artificial condition, could let 
 it revert to its natural condition without subjecting it to be over- 
 flowed or otherwise injured by dams or obstructions thereafter 
 erected. That he had obstructed it himself was no license to an- 
 other to do it.* An owner of the land on both sides of a fresh- 
 water stream may build a bridge for his own use, provided he does 
 it so as not to interfere with the public easement, without any au- 
 thority from the Legislature and even in defiance of a legislative 
 
 ^ Grant v. Kuglar, 81 Ga. 637, 3 L. R. A. 600. 
 
 2 ^Paige v. Rocky Ford Canal & Irrig. Co. «3 Cal. 80. 
 
 *Ford V. Lukeiis, 81 Ga. 633.
 
 Chap. XXL] OBSTRUCTIONS TO THE FLOW OF WATERS. 40lJ 
 
 prohi1)ition. A fresli-water stream is held in Xew York,* al- 
 though navigable in fact, to be the private property of the riparian 
 owner, and he has a right to use the land and water of the river 
 in any way not inconsistent with the jniblic easement for naviga- 
 tion and floating logs. But without legislative authority he can- 
 not maintain a bridge for public or general use, because pul)Hc 
 highways and toll bridges are subject to legislative regulation and 
 control.' 
 
 Obstructions of navigable rivers in aid of commerce which do 
 not materially injure the navigation are not nuisances.' Eveiy 
 bridge over a river is not necessarily a nuisance.^ The obstruc- 
 tion to navigation must be plainly a nuisance, before it can be re- 
 moved by decree.' If the erection is for a public purpose, and 
 produces a public benefit, and is in a reasonable situation, and a 
 reasonable space is left for the passage of vessels, then it is not an 
 unreasonable obstruction. ° Temporary inconvenience to private 
 parties, in common with the public in general, occasioned by the 
 exercise of a right conferred by law for the benefit of the public, 
 gives them no right to damages. It is damnum absque injuria? 
 The distance of IGO feet between the jDiers of the bridge 
 across the Missouri Eiver at Kansas Cit3% required by the Act 
 of Congress of July 25, 18S6, is obtained by measuring along 
 a line between the piers, drawn perpendicularly to their faces and 
 the current of the river.* 
 
 A State Legislature may at least authorize the building of a 
 
 '^ Canal Comrs. v. People, 5 Wend. 423, 448; Pennsylvania v. Wheeling <fe B. 
 Bridge Co. 59 U. S. 18 How. 421, 15 L. ed. 435; Morgan v. King, 35 N. 
 Y. 454; Chenango Bridge Co. v. Paige, 83 N. Y. 178. 
 
 ^The Binghamton Bridge, 70 U. S. 3 Wall. 71, 18 L. ed. 142; Chenango 
 Bridge Co. v. Paige, 83 N. Y. 178. See Ex parte Jenningn, 6 Cow. 5',>7, 
 543; People v. Outcheas, 48 Barb. 656; People v. Piatt, 17 Johns. 195: Fort 
 Plain Bridge Co. v. Smith, 30 N. Y. 44; Walker v. Board of Public Works, 
 16 Ohio, 540; Jones v. Pettibone, 2 Wis. 308; Walker y. Shepardsvn, 4: Wis. 
 486; Fates v. Milwaukee, 77 U. S. 10 Wall. 497, 19 L. ed. 984; Hepburn's 
 Case, 3 Bland, Ch. 98; Power v. Athens, 99 N. Y. 592, 598. 
 
 ^Harlan & H. Co. v. Paschall, 5 Del. Ch. 438. 
 
 "•Circuit court decision affirmed on equal division, Milnor v. New Jersey R. 
 & Transp. Co. 70 U. S. 3 Wall. '721, 16 L. ed. 799. 
 
 6 ^Mississippi & M. R. Co. v. Ward, 67 U. S. 2 Black, 485. 17 L. ed. 311. 
 
 ■>namUton v. Vicksburg, 8. & P. R. Co. 119 U. S. 280, 30 L. ed. 393. 
 
 ^Hannibal & St. J. R. Co. v. Missouri River Packet Co. 125 U. S. 260, 31 L. 
 ed. 731 ; 67. Louis & St. P. Packet Co. v. Keokuk cfi U. Bridge Co. 31 Fed. 
 Rep. 755.
 
 464 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 bridge or other structure tending to obstruct tlie navigation of a 
 navigable river, which is altogether within its own boundary; and 
 it is only when Congress, by virtue of the constitutional provision, 
 acts as to such obstructions that its will must be obeyed so far as 
 may be necessary to insure free navigation.* In fact, many of the 
 cases hold that the obstruction may go to the extent of entirely 
 destroying the navigation of the stream.'' 
 
 The power to authorize the building of bridges over navigable 
 streams within the State is not to be found in the Federal Consti- 
 tution. It has not been taken from the States.^ Except as against 
 the action of Congress, the power of a State is plenary over the 
 form and chai'acter of a bridge, irrespective of its effect upon nav- 
 igation.'' An Act of Congress, admitting a State, which provides 
 that a river shall be a common highway and forever free, does not 
 affect the power of the State in respect to bridges over it.^ Tlie 
 erection of a bridge over the "Willamette River at Portland is not 
 a violation of the Admission Act of Oregon.' A bridge con- 
 structed over a navigable river, in accordance with the legislation 
 of both the state and federal governments, must be deemed a 
 lawful structure, however much it may interfere with the public 
 right of navigation.'' Under the Pliode Island Act authorizing 
 the construction of a bridge over a river, in such place and man- 
 ner as commissioners might determine, they could erect a bridge 
 high above the river, and extending beyond the bank to an avenue, 
 there establisliing an abutment.* The Statutes of New York au- 
 thorize boards of supervisors, upon the application of one town, 
 to legally require a stream forming the boundary between two 
 towns to be bridged at the joint expense of said towns, and com- 
 pelling each town to raise money to pay its share of the expense 
 by an issue of bonds." Where a bridge was originally constructed, 
 
 ^Willmi V. Black Bird Creek Marsh Go. 27 U. S. 2 Pet. 245, 7 L. ed. 412; 
 Cardwellv. American River Bridge Co. 113 U. S. 205, 28 L. ed. 959; North- 
 ern Transp. Go. v. Chicago, 99 U. S. 635, 25 L. ed. 836. 
 
 ^ Green & B. R. Nav. Go. v. Ghesapeake, 0. cfi S. W. R. Co. (Ky. Dec. ll, 
 2 L. R. A. 540; Leisy v. Hardin, 135 U. S. 100, 120, 34 L. ed. 128, 136. 
 
 ^Oilman v. P/iiladelphia, 70 U. S. 3 Wall. 713, 18 L. ed. 96. 
 
 * ^Hamilton v. Vicksbiirg, 8. & P. R. Go. 119 U. S. 280, 30 L. ed. 393. 
 
 « Willamette Iron Bridge Go. v. Hatch, 125 U. S. 1, 31 L. ed. 629. 
 
 UlUler V. New York City, 109 U. S. 385, 27 L. ed-. 971. 
 
 ^Sullivan v. Webster, 16 R. I. , 5 New Eug. Rep. 331. 
 
 ^Kirkwood v. Newburg, 45 Hun, 823.
 
 Chap. XXI.] OBSTRUCTIONS TO THE FLOW OF WATERS. 405 
 
 and has for a number of years been maintained, by two adjoin iiii^ 
 towns, upon a highway running along the line between the town.s, 
 it is the duty of both towns to keep it in repair; and both are lia- 
 ble for injuries sustained by reason of its being out of repair.' 
 
 Congress can legalize a bridge over a navigable river under the 
 power to regulate commerce." It may declare that, upon a cer- 
 tain fact being established, a bridge over a navigable river shall be 
 deemed a lawful structure, and employ the Secretary of War as an 
 aiicnt to ascertain that fact. It thereby abdicates none of its au- 
 thority.' Congress can lawfully confer authority to construct a 
 l)ridge across navigable waters for the purpose of interstate com- 
 merce, although one of the States within which the waters are di- 
 rectly situated does not consent, but protests against the erection 
 of the bridge.* Yet the fact that a bridge over navigable waters 
 has been sanctioned by Congress, or by the State within whose 
 limits it is situated, and that it has been built by a person or cor- 
 poration authorized to build it, does not render it a legal structure 
 unless, as built, it conforms to the terms and limitations of the au- 
 thority.' The obstruction of navigation by the repairing of a 
 bridge over a river in replacing a draw span, which bridge is main- 
 tained under lawful authority, creates no right of action in favor 
 of parties entitled to navigate the river, if the repairs are made in 
 such a manner as not unreasonably to obstruct tlie navigation, al- 
 though it was possible to have opened the draw and constructed 
 the new one upon the edge of the river, thus avoiding all obstruc- 
 tion to navigation, but which M-ould have involved unreasonal)le 
 delay and expense.* An Act of Congress to legalize a bridge 
 across a navigable river, passed pending a suit to remove the bridge 
 as a nuisance, gives the rule of decision for the court at the final 
 hearing.' An Act of Congress declaring a bridge over the Ohio 
 River a lawful structure supersedes a previous decree of the court 
 
 ^Oeity V. Eamlin, 46 Hun, 1. 
 
 ^Gray v. Chicago, I. & K R. Co. 77 U. S. 10 Wall. 454, 19 L. ed. 009. 
 
 ^MUler V. New York City, 109 U. S. 385, 27 L. ed. 971. 
 
 < ^Pennsyloania B. Co. v. Baltimore & N. 7. R. Co. 37 Fed. Rep. 129. 
 
 ^Qreen & B. R. Nav. Co. v. Chesapeake, 0. cfi S. W. R. Co. (Ivy. Dec. 11, 1888) 
 
 2 L. R. A. 540; Oreen.& B. R. Nav. Co. v. Palmer, 83 Ky. 646. 
 ''Gray v. Chicago, 1. & N. R. Co. 11 U. S. 10 Wall. 454, 19 L. ed. 969. 
 30
 
 4G6 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 declarino; it an obstruction to navigation and directing its removal.' 
 "Where Congress gave a license to erect and maintain a bridge 
 across the Ohio, the bridge company, by accepting its provisions, 
 became subject to the reservation of power in Congress to vt^itli- 
 draw the license and to direct necessary alteration of the bridge.* 
 
 The paramount power of regulating bridges over the navigable 
 waters of the United States — as the Ohio River — is in Congress 
 and free from the interference of the States.^ The power of 
 Congress to build a bridge, or authorize a bridge to be built, across 
 water dividing two States, is altogether independent of the consent 
 and concurrence of the state governments.* Congress can author- 
 ize a private corporation to occupy navigable waters and construct 
 a bridge across the same, for purposes of interstate commerce,, 
 without consent of any State.* The Ohio is a navigable stream 
 and subject to the commercial power of Congress ; and if the Act 
 of a State authorized the creation of an obstruction, it would be 
 no justification." The Act of Congress approved June 16, 1SS6,. 
 authorizing the construction of abridge across Staten Island Sound,, 
 known as " Arthur Kill," is within the power of Congress to regu- 
 late commerce, and is valid.^ "When Congress declares a bridge 
 across a navigable river an unlawful structure, no state legislation 
 can make it lawful.* 
 
 A railroad company chartered in another State may be obliged, 
 by the condition of a state statute which recognizes it as a corpo- 
 ration of that State, to construct and maintain a drawbridge in the 
 channel of a river which is crossed by the company's road, on tlie 
 line between two States.' If by the act of the government sub- 
 
 ^Pennsylvania v. Wheeling & B. Bridge Go. 59 U. S. 18 How. 431, 15 L. ed. 
 
 435. 
 2 ^Newport <& C. Bridge Co. v. United States, 105 U. S. 470, 36 L. ed. 114B. 
 ^Stockton V. Baltimore & N. Y. B. Go. 1 Inters. Com. Rep. 411, 32 Fed. 
 
 Rep. 9. 
 ^Decker v. Baltimore & K Y. R. Go. 1 Inters. Com. Rep. 434, 30 Fed. Rep. 
 
 723; Stockton v. BaltiTnore <& iV. Y. B. Co. 1 Inters. Com. Rep. 411, 32 
 
 Fed. Rep. 9. 
 ^Pennsylvania v. Wheeling & B. Bridge Go. 54 U. S. 13 How. 518, 14 L. ed. 
 
 249. 
 "* Stockton V. Baltimore & N. Y. R. Co. 1 Inters. Com. Rep. 411, 32 Fed. 
 
 Rep. 9. 
 ^Cardicelly. American River Bridge Go. 113 U. S. 205, 28 L. ed. 959. 
 ^Mw Orleans, M. <& T. R. Co. v. Mississippi, 112 U. S. 12, 28 L. ed. 619.
 
 Chap. XXI.] OBSTRUCTIONS TO THE FLOW OF WATERS. 407 
 
 sequent to the building of tlie bridge, or by any utlier means not 
 within the control of the company erecting the bridge, the cur- 
 rents were so radically changed as to materially obstruct the navi- 
 gation and make the passage of the draw dangerous, it would have 
 been incumbent on the bridge company to change the piers in con- 
 formity to the new condition of things; but if the change in the 
 current to the draw. by the excavation was slight, the failure to 
 exercise proper skill in such erection will constitute such negli- 
 gence, though ever so much care is used in its erection. The fail- 
 ure to build the bridge in the manner prescribed by law is negli- 
 gence j^e/* 5(3.' Where, before a bridge over a navigable stream, 
 authorized under a general Act, was built, a canal was ordered by 
 the government to be constructed, it became the duty of the 
 bridge company to plan and build their bridge with reference to 
 the canal through wliich the principal traffic of the river would 
 pass; but the company were only required to use reasonable dili- 
 gence and skill in forming and executing their plans, and were not 
 required to foresee and absolutely anticipate the effect upon the 
 current of the river of a factor not yet in existence ; and if the 
 piers of the bridge were made parallel, as far as possible, with the 
 currents of the river and the necessities of the canal, with the re- 
 sult that the passage of the draw is reasonably safe, negligence 
 cannot be imputed to the company.^ 
 
 A railroad company which causes lands to be overflowed by ob- 
 structing a watercourse by its levees, trestles, etc., is liable for the 
 injury, although the flow of water and the accumulations in the 
 stream were increased by natural causes, — as, by the clearing of 
 the land or loosening of the soil by cultivation.' Where a rail- 
 road company builds a road across a natural watercourse, it is its 
 duty to provide for a discharge of all water that may flow through 
 such watercourse, although the amount of water be subsequently 
 increased by constructing drainage ditches.* 
 
 > *St. Louis & St. P. Pricket Co. v. Keokuk dk B. Bridge Co. 31 Fed. Rep. 
 
 755. 
 ^Mississippi & T. R. Co. v. Archibald, 67 Miss. 38. 
 *Eankakee & S. R. Co. v. Iloraa, 131 111. 2a8.
 
 468 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 Section ^^.— Relief in Case of Obstruction to Flow 
 
 of Stream. 
 
 ti. By Indictment or Information. 
 
 An unlawful obstruction to navigation, being a common nui- 
 sance, is remediable by indictment.' In some of the States the 
 proper proceeding in equity to restrain a public nuisance is by in- 
 formation by the attorney-general.'' But the statutory authority' 
 given to an aqueduct board, to sue in equity to restrain nuisances 
 to watercourses connected with its works, does not constitute it a 
 public agent to sue to restrain a public nuisance, but merely gives 
 it power to sue as an individual for the protection of its private 
 property.* The fact that keeping a nuisance is a crime does not 
 deprive a court of equity of the power to abate the nuisance." 
 But a federal court cannot grant an injunction to prevent munic- 
 ipal authorities from interfering with the construction of obstruc- 
 tions to navigation in a navigable river, in the absence of authority 
 
 ^ Henry v. Newhurypori, 149 Mass. 582, 5 L. R. A. 179; ante, p. 75. note 1; 
 
 3 Bl. Com. chap. 13; 1 Chitty, Pr. 383; Respuhlica v. Arnold, 3 Yeates, 
 417; Hale, De Jure Maris, chap. 3, and De Portibus Maris, chap. 7; Har- 
 grave, Law Tracts, 9, 88; Rex v. Russell, 6 Barn. & C 566; Rex v. Ward, 
 
 4 Ad. & El. 384; Rex v. Orosvenor, 2 Stark. 511; Rex v. Morris, 1 Barn. 
 & Ad. 441; Rex v. Tindall, 6 Ad. & El. 143; Reg. v. Beits, 16 Q. B. 1023; 
 Reg. V. Randall, 1 Car. & M. 496; Com. v. Wright, Thach. Cr. Cas. 211; 
 Ronayne v. Loranger, 66 Mich. 373, 10 West. Rep. 523; Com. v. Alger, 7 
 Cush. 53; People v.Vanderhilt, 26 N. Y. 287; P&jple v. Horton, 64 N. Y. 
 610; Gates v. BUncoe, 2 Dana, 158; Walker v. Hliepardson, 2 Wis. 384; 
 Allegheny V. Zimmerman, 95 Pa. 287; State v. South Carolina R. Co. 28 
 S. C. 23. 
 
 ^Newark Aqueduct Board v. Passaic, 45 N. J. Eq. 393; Atty-Gen. v. Burridge, 
 10 Price, 350; Atty-Gen. v. Parmeter, 10 Price, 378, 411; AttyGen. v. 
 Terry, L. R. 9 Ch. 423; Atty-Gen. v. Lonsdale, L. R. 7 Eq. 377; Atty-Gen. 
 V. Johnson, 2 Wils. Ch. 87; AttyGen. v. Richards, 1 Anstr. G03; Atty- 
 Gen. V. Tomline, L. R. 12 Ch. Div. 214; Atty-Gen. v. Cleaver, 18 Ves. Jr. 
 211; Georgetown v. Alexandria Canal Co. 37 U. S. 12 Pet. 91. 9 L. ed. 
 1012; Atty-Gen. v. Utica Ins. Co. 2 Johns. Ch. 371, 382. 1 K Y. Ch. L. 
 ed. 412, 418; Atty-Gen. v. Cohoes Co. 6 Paige, 133, 3 N. Y. Ch. L. ed. 
 928; Tolo County v. Sacramento, 36 Cal. 193; Eden, Inj. chap. 1; 2 Story, 
 Eq. Jur. ^%2\et seq.: Rowe v. Granite Bridge Corp. 21 Pick. 344; Atty- 
 Gen. V. Salem, 103 Mass. 138; Haskell v. New Bedford, 108 Mass. 208, 216; 
 Atty-Gen. v. BostonWJuirf Co. 12 Gray, 553; AttyGen. v. New Jersey R. 
 & Transp. Co. 3 N. J. Eq. 136; Newark PL Road <& Ferry Co. v. Elmer, 
 9 N. J. Eq. 755; Atty-Gen. v. Paterson & H. R. R. Co. 9 N. J. Eq. 526; 
 Giffoi'd V. New Jersey R. & Transp. Co. 10 N. J. Eq. 177; Atty-Gen. v. 
 Delaware & B. B. R. Co. 27 N. J. Eq. 1, 631; Allen -v. Monmouth County, 
 13 N. J. Eq. 68; Gould, Waters, 217. 
 
 ^Newark Aqueduct Board v. Passaic, 45 N. J. Eq. 393. 
 
 * Atty-Gen. v. Hunter, 1 Dev. Eq. 12; People v. St. Louis, 10 111. 351; EweU 
 V. Greenwood, 26 Iowa, 377; Minke v. Hopeman, 87 111. 450.
 
 Chap. XXL] RELIEF FROM OBSTRUCTION TO FLOW OF STREAM. 460 
 
 by Act of Congress.' When the nuisance causes botli a public 
 and private injury, a suit in equity may be brought by informa- 
 tion and bill." 
 
 b. Individual Right to Abate. 
 
 Expenses voluntarily incurred in making alterations in a vessel 
 so that it will pass under a bridge so placed over a navigable river 
 as to obstruct navigation, and thus constitute a public nuisance, 
 do not result directly from the obstruction so as to bring the per- 
 son bearing them within the rule that one may recover damages 
 for injuries caused by a public nuisance, if such injuries are pecu- 
 liar to himself, and result directly from the nuisance and differ in 
 kind from those sustained by the public generally.* In New York 
 any expense or delay, however trifling, incurred by one member 
 of the public in removing an unlawful obstruction in a highway 
 has been held to be ground for an action." 
 
 The right of an individual citizen to abate a public nuisance 
 arises only when it becomes an obstruction to the exercise oi his 
 private rights." An owner of lower lands may abate as a nuisance 
 an embankment erected by an upper owner upon his own land to 
 increase the disehai-ge of surface water on the lower owner's lands 
 for the purpose of coercing the latter to allow the water to flow 
 over his lands as it had been permitted to flow for some years, un- 
 der a verbal license and tacit consent of a former owner, provided 
 he does not injure the upper owner's land.' A private individual 
 may not lawfully abate a public nuisance, with no purpose or ob- 
 ject other than to have it removed.* 
 
 The true theory of abatement of nuisances is that an individual 
 
 ^Texas & P. R. Co. v. Neio Orleans, 40 Fed. Rep. 111. 
 
 ^Atty-Gen. v. Lonsdale, L. R. 7 Eq. 377; Atty-Gen. v. Forbes, 2 Myl. & Cr. 
 
 123; Gould, Waters, 218. 
 ^Scmth Carolina Steamboat Co. v. South Carolina R. Co. 30 S. C. 539, 4 L. R. 
 
 A. 209. 
 *Pieroe v. Dar't, 7 Cow. 609; Lansing v. Wiswall, 5 Denio, 213; Lansinr/ v. 
 
 Smith. 4 Wend. 9, 8 Cow. 146; Hudson River R. Co. v. Loeb, 7 Robt. 418. 
 ''Brown v. De Groff, 50 N. J. L. 409, 12 Cent. Rep. 818; Atwood v. Partree, 
 
 56 Conn. 80, 6 New Eng. Rep. 465; Gould, Waters, 217. 
 *White V. Sheldon (Sup. Ct. Dec. 80, 1889) 28 N. Y. S. R. 475. 
 "^Dimes v. Petley, 15 Q. B. 276; Bateman v. Bluck, 18 Q. B. 870; Harrower v. 
 
 Ritson, 37 Barb. 301; Gnffith v. McCullnm, 46 Barb. 561; Brown v. De- 
 
 Groff, 50 N. J. L. 409, 12 Cent. Rep. 818.
 
 470 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 citizen may abate a private luiisance injurious to him, when he 
 could also bring an action ; and also when a cpnnnon nuisance ob- 
 structs his individual right, he may remove it to enable him to en- 
 joy that right; and he cannot be called in question for so doing.' 
 So where one is responsible as licensor, for what has become a 
 nuisance, he may abate it. The occupant, not only, but the owner 
 of a place, like a house or mill, erected to the nuisance of another, 
 is liable in an action on the case, which may be brought by the 
 successive owners and occupants of the place whei-e the injury is 
 sustained. In short, the continuance and very use of that which, 
 in its erection or changed use, was or is a nuisance, is a new nui- 
 sance for which a party has a remedy for his damages.^ Thci'e- 
 fore a surface-water drain over another's land, used under a license, 
 when used to carry off noxious matter and so becoming a public 
 nuisance, may be closed up by the licensor on notice; and the 
 remedy of the public authorities upon continued use by the licensee 
 thereafter, causing an overflow of the highway, is against the li- 
 censee, and not against the licensor.^ 
 
 The principle that a party may sometimes abate an obstruction 
 or nuisance in a highway, without waiting for the slow process of 
 the law, has no application to the removal of a dam in a navigable 
 river, because it causes shoaling in the river below it, where it has 
 been built under authority of a special statute, one purpose of 
 which was to allow the redemption of certain land for agricultural 
 purposes, and which makes provision for a remedy in case of such 
 shoaling. A corporation might be indictable which was author- 
 ized to maintain a bridge and keep it in safe and proper condition 
 for use, for failing to keep it in proper repair; but it could not 
 therefore be rightfully destroyed by one who had occasion to pass 
 over it." 
 
 In Artmdel v. JfeCidloch, 10 Mass. 70, a bridge, without any 
 authority of law^, had been erected across a navigable stream, and 
 it was held that one having occasion to pass with his vessel might 
 lawfully break through the same, doing no more damage than was 
 
 ^Brown v. Perkins, 13 Gray, 100: Miller v. Formnn, 37 N. J. L. 56; Brown 
 
 V. De Graff, 50 N. J. L. 409, 12 Cent. Rep. 818. 
 ^Staple V. Spring, 10 Mass. 73. 
 ^Crosland v. Pottsville, 126 Pa. 511. 
 *Com. V. Central Bridge Corp. 12 Cush. 242. 244.
 
 Chap. XXL] RELIEF FROM OBSTRUCTION TO FLOW OF STREAM. 471 
 
 necessary for his passage. But a dam does not become a wholly 
 unlawful structure because the pro})rietors have neglected to per- 
 form an important but subordinate duty in its management, by 
 the nonperformance of which, and not by the structure itself, in- 
 jury might result to others. Where the provisions of the statute 
 made to enforce the performance of this duty are ample, even if 
 the necessity had been immediate, that the accumulation, as in 
 case of a dam, should be removed, yet where it does not appear 
 that the destruction of the dam would have enabled persons at 
 once to use the stream below the dam, or that at the time they 
 had any occasion so to do, and they were not then navigating the 
 stream, and it is not shown that the removal of the dam would 
 have removed the shoaling, they sustained no special or peculiar 
 ■damage different from that of the rest of the community.* 
 
 c. Private Right of Action for Obstructing Water- 
 course. 
 
 An individual who has sustained any particular, special damage 
 over and above that sustained by the public generally as the direct 
 result of the obstruction of a navigable river or highway may main- 
 tain a civil action to recover damages for such injury. In case of 
 public nuisance, the plaintiff must aver special damages to him, 
 inasmuch as the law does not presume or imply damage to any 
 particular individual from the public offense." The particular 
 damage is the gist of the action, and must be specially set forth in 
 the declaration.' In this respect a chartered corporation stands 
 uj)on precisely the same footing as a private individual. Its rights 
 are no greater and no less than those of the individual and are to 
 be tested by the same principle.* 
 
 •Coot. v. Tolman, 149 Mass. 229, 3 L. R. A. 747. 
 
 '^Hai't V. Evans, 8 Pa. 13; 1 Sutherland, Damages, 766. 
 
 ^Baker v. Boston, 12 Pick. 184, 196; Atkins v. Bordman, 2 Met. 457; TTnnck 
 V. Wachter, 34 Md. 265; Bazter v.Winooski Turnp. Co. 22 Vt. 114; HhUy. 
 Kitson, 4 Chand. (Wis.) 20; Ch'eene v. Nunnemncher, 36 Wis. 50; Powers 
 V. Irish, 23 Mich. 429; Dwinel v. Veazie, 44 Me. 167, 175; Memphis <6 
 0. R. Co. V. Hicks, 5 Sneed, 427; Roseburg v. Abraham, 8 Or. 509; Far- 
 relly v. Cincinnati, 2 Disney (Ohio) 516; Taylor v. Monroe, 43 Conn. 36; 
 Tomlinson v. Derby, 43 Conn. 562; South Carolina v. Oeorqia, 93 U. S. 4, 
 14, 23 L. ed. 782, 785; Smith v. McConathy, 11 Mo. 517; Payne v. McKin- 
 ley, 54 Cal. 532. 
 
 *South Carolina Steamboat Co. v. South Carolina R. Co. 30 S. C. 539, 4 L. 
 R. A. 209.
 
 472 IMPOSED DUTIES, PERSONAL. ' [Part II. 
 
 There is considerable conflict in the authorities as to what will 
 constitute such special or particular injury beyond that sustained 
 by the public generally as will authorize a suit by an individual. 
 The true rule to be deduced from these authorities seems to be 
 that the injury must be particular, — as several of the cases express 
 it, " special or peculiar," — must result directly from the ob- 
 struction and not as a secondary consequence ^thereof, and must 
 differ in kind and not merely in degree or extent from that which 
 the general public sustain.' 
 
 In Carey v. Brooks^ 1 Hill, L. 365, the action was brought by a 
 private individual to recover damages for a public nuisance in ob- 
 structing the navigation of a stream, under the allegation that the 
 plaintiff had incurred expense in clearing out the channel of the 
 stream and had suffered loss in transporting his lumber to market 
 under a special contract to deliver it within a specified time. It 
 was held that the action could not be sustained because the dam- 
 age complained of was not such as would justify such an action, — 
 quoting the rule as laid down in Bacon's Abridgement : " A 
 particular damage, to maintain this action, ought to be particular 
 and not consequential;" and adding: "This seems to be the set- 
 tled law founded on the inconvenience of allowing a separate 
 action to every individual who suffers an inconvenience common 
 to many." 
 
 In Crouch V. Charleston c& S. R. Co., 21 S. C. 495, the action 
 was to recover damages for certain injuries sustained by the plain- 
 tiff's steamboat passing through a drawbridge, erected by the de- 
 fendant across a navigable stream, plaintiff's boat having struck 
 the bridge in passing through the draw, which was held to be in- 
 sufficient. The injury there complained of was peculiar and spec- 
 ial to plaintiff, different in kind from that sustained by the public 
 generally, and was the direct result of an obstruction and not a 
 mere secondary consequence thereof. That case was like the case 
 of a traveler who, in attemj)ting to pass an obstruction in a public 
 highway, is thrown from his horse or has his vehicle upset and 
 broken, or his horse injured, in which case a private action may 
 unquestionably be maintained to recover damages for such injuries, 
 
 ^Barnes v. Ward, 9 C. B. 393; Hounsell v. Smyth, 7 C. B. N. S. 731; ante, 
 p. 79, note 1.
 
 Chap. XXI.] KELIEF FROM OBSTRUCTION TO FLOW OF STREAM. ■i1l> 
 
 as they differ in kind from those suffered by the general public, 
 and are the direct result of tlie obstruction. 
 
 In uMcZauchlin v. Charlotte <j& S. C. E. Co., 5 Rich. L. 5S3, the 
 complaint was for the nnauthorized obstruction of a public street 
 and it was said that, to sustain such a complaint, a particular direct 
 damage must be shown. 
 
 It was held in Ewell v. Greemcood, 26 Iowa, 377 ; Wilson v. 
 Sexon, 27 Iowa, 15, and ITonghmn v. Ilarmy, 33 Iowa, 203, — that 
 the plaintiffs could maintain actions to abate obstructions in public 
 highways. But in each of those cases the plaintiff suffered injuries 
 in consequence of tlie nuisance not sustained by th^ general pub- 
 lic, and it was that fact which gave him a standing in the court ; 
 and the general rule was recognized in each of the cases. Being 
 delayed for hours by an obstruction on a highway, and thereby 
 prevented from performing the same journey as many times in a 
 day as if the obstruction had not existed, has been held sufficient 
 injury to maintain an action against the obstructor.* 
 
 \nlnnis V. Cedar Rapids. 7. F. & N. TF". R. Co., 76 Iowa, 165, 
 2 L. R. A. 282, it appeared that the plaintiff was a resident of the 
 Town of Emmetsburg, which was situated at the south end of the 
 lake, and was the owner of a number of small boats, which he kept 
 for hire, and which he rented to others for use on the lake. They 
 had been used for purposes of pleasure, and by persons engaged 
 in fishing, and were not adapted to any other use. The lake was five 
 or six miles long, and its width varied from one fourth to three 
 fourths of a mile. A bridge was situated about one mile from the 
 south end, and spanned the whole width of the lake at that point. 
 There was no draw or opening in it, and the bottom timbers were so 
 near the water that boats could not safely or conveniently pass under 
 it. The boat house and landing were situated at the south end next 
 to the town, and that was the only pointof convenient access to tlie 
 water from the town, and the part of the lake north of the bridge 
 was better adapted to boating than that lying south of it. Tlie 
 plaintiff's grievance was that, owing to the obstruction caused by the 
 bridge, the business of boating on the lake had greatly fallen off, 
 and as a consequence his business had been impaired, and his profits 
 therefrom diminished. He also alleged, and the evidence tended to 
 
 ^ChreaMy v. Codling, 2 Bing. 263.
 
 474 IMPOSED DUTIES, PERSONAL. [Part 11. 
 
 prove, that lie and others contemplated placing a small steamer on 
 the lake, but were deterred from engaging in the enterprise by the 
 existence of the obstruction. The evidence also showed that he did 
 not engage in the business until four or five years after the 
 bridge was constructed. The substance of his complaint was 
 that the bridge obstructed the navigation of the lake. But with 
 reference to the right to navigate it, it was ruled that he occupied 
 precisely the same position as other members of the general public; 
 that tlie fact that, since the bridge was erected, he had purchased 
 boats, and engaged in the business, gave him no other or different 
 rights with reference to the subject than were enjoyed by others, 
 for everyone had the right to do the same thing. His sole right 
 in the premises was to use the lake as a highway; but it M^as said that 
 every other member of the public had the same right, and an in- 
 dividual can only maintain an action for damages by reason of a 
 nuisance when some right of his own has been invaded.' Relief was 
 therefore denied him as an individual, for the general rule is that 
 individuals are not entitled to redress against a public nuisance. 
 
 If a bridge is unlawfully constructed across a navigable stream 
 and arm of the sea, the direct injury is to the navigation of 
 of the stream, which is a public interest ; and the fact that the 
 plaintiff alone navigates the river, and is the owner of the only 
 wharf thereon above the bridge, being merely proof that the con- 
 sequential damage to him is greater in degree than to others, does 
 not establish his right to maintain an action, as other riparian own- 
 ers and the rest of the public may suffer in the same way when- 
 ever they use the stream.^ The private injury is merged in the 
 common nuisance and injury to all citizens, and the right is to be 
 vindicated and the wrong punished by a public prosecution, and 
 not by a multiplicity of separate actions in favor of private per- 
 fions.° The rule undoubtedly is that a private individual will not 
 
 ^Henry v. Newburyport, 149 Mass. 583, 5 L. R. A. 179. 
 
 ^Blackioell v. Old Colony R. Go. 132 Mass. 1; Lciwrencev. FairJutven, 5 Gray, 
 110; Brightmanv. Fairhaven, 7 Gray, 271; Wesson y.Washbm'n Iron Co. 
 13 Allen, 95; Brnyton v. Fall River, 113 Mass. 218; Borden v. Vincent, 24 
 Pick. 301; Smith v. Boston, 7 Cush. 257; Thayer v. New Bedford R. Co. 
 125 Mass. 253; Breed v. Lynn, 126 Mass. 367. 
 
 ^Wesson v. WasJiburn Iron Co. 13 Allen, 95, 101; Stetson v. Faxson, 19 Pick. 
 147; Thayer v. Boston, 19 Pick. 511, 514; Borden v. Vincent, 24 Pick. 801; 
 Quincy Canal Co. v. Newcomb, 7 Met. 276, 283; Holmanw. T/mnsend, 13 
 Met. 297, 299; Brainard v. Connecticut River R. Co. 7 Cush. 506, 511: 
 Harvard College v. Stearns, 15 Gray, 1; Fall River Iron Works Co. y. Od
 
 ■Chap. XXI.] RELIEF FUOM OBSTKUCTION TO FLOW OF STREAM. 4:75 
 
 be allowed to maintain an action to restrain or abate a pii1)lic nui- 
 sance unless he can show that it occasions some peculiar or special 
 damage or injury to him.' 
 
 One who suffers no pecuniary damage from an obstruction in a 
 highway, but is merely put to the inconvenience, common to all 
 who use the way, of removing the obstruction or of taking a more 
 circuitous route, cannot maintain an action." But if a public nui- 
 sance, such as an unlawful obstruction to a common passage, causes 
 peculiar damage to an individual, he may maintain an action 
 "therefor, and the complaint need not negative the lawfulness of 
 the obstruction, or its continuance, or that it was unavoidable — 
 these being matters of defense to be set up by answer.* 
 
 Two or more persons owning separate and distinct tenements, 
 whether they occupy the premises by themselves or by tenants, 
 may, together with the tenants, where the tenements are lessened 
 in value or made materially uncomfortable as homes by a nuisance 
 which is a common injury to all the tenements and their residents, 
 join in a suit to restrain such nuisance.* Damages may be re- 
 covered for a peculiar private injury caused thereby, though a like 
 injury is sustained by numerous other persons.^ It is not enough 
 
 Colony & F. R. R. Go. 5 Allen, 224; Shaubut v. St. Paul & 8. C. R. Co. 
 21 Minn. 502; OrigKby v. Clear Lake Waler Works Co. 40 Cal. 396; Gor- 
 • don V. Baxter, 74 N. C. 470; Re Eldred, 46 Wis. 530, 541; Hatch v. Ver- 
 mont Cent. R. Co. 28 Vt. 142; Loio v. Knowlton, 26 Me. 128; Lansing v. 
 Smith, 8 Cow. 146, 4 Wend. 9; Landing v. Wisicall, 5 Denio, 213, 5 How. 
 Pr. 77; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Anderson v. Roch- 
 ester, L. & N. F. R. Co. 9 How. Pr. 553; Dougherty v. Bunting, 1 Sundf. 
 1; Oshorn v. Union Ferry Co. 53 Barb. 629; State v. Thompsoii, 2 Strobh. 
 L. 12; Georgetown St. Comrs. v. Taylor, 2 Bay (S. C.) 282; Harrison 
 V. Sterett, 4 Har. & McH. 540; Flynn v. Cariton Co. 40 Md. 312; Walter 
 V. Wicomico County, 35 Md. 385; South Carolina R. Co. v. Moore, 28 Ga. 
 398; Morgan v. Graham, 1 Woods, 124; I^ewiston Tnrnp. Co. v. Shasta & 
 W. Wagon Road Co. 41 Cal. 562; Gould, Waters, 222. 
 
 n High. Inj. § 762; Gould, Waters. §§ 121, 122; Blackioell v. Old Cohny 
 R. Co. 122 Mass. 1; Willard v. Cambridge, 3 Allen, 574; Prince v. McCoy, 
 40 Iowa, 533; Prosser v. Ottumica, 42 Iowa, 509. 
 
 *Winterbott.om v. Derby, L. R. 2 E.^ch. 316; Wiggins v. Boddington, 3 Car. 
 & P. 544; Fineaux v. Hovenden, Cro. Eliz. 664; Hubert v. Groves, 1 E*p. 
 148: Carpenter v. Mann, 17 Wis. 155; Greene v. Nunnemacher, 36 Wis. 
 50; Houck v.Wachter, 34 Md. 265; Shipley v. Caples, 17 JId. 179; Garitee 
 V. Baltimore, 53 Md. 422, 437; Farrelly v. Cincinnati, 2 Disney (Ohio) 516; 
 McCovoan v. Whitesides, 31 Ind. 235; Shed v. Hawthorne, 3 Neb. 179; Barr 
 V. Steoens, 1 Bibb, 293. See Pittsburgh v. Scott, 1 Pa. 309. 
 
 'Enos V. Hamilton, 27 Wis. 256; Dudley v. Kennedy, 63 .Me. 465. 
 
 *Snyder v. Cabell, 29 W. Va. 48. 
 
 *Francis v. ScJwelllcopf, 53 N. Y. 152; Soltau v. De Held, 2 Sim. N. S. 133.
 
 476 IMPOSED DUTIES, PERSONAL. [Part IL 
 
 that injury is shown, but it must be diSerent in kind from that 
 sustained bj the community at large.' 
 
 An allegation that plaintiff had great difficulty in renting his 
 houses by reason of a nuisance maintained by defendant, and that 
 they had depreciated in value, is sufficient to authorize a recovery 
 for loss of rents." A party suffering damage from the improper 
 construction of a railroad bridge over a stream of water crossing 
 his right of way may treat it as temporary, and sue for injury from 
 its continuance, instead of for the whole injury to the value of hia 
 property.' 
 
 d. Jurisdiction of Equity over Obstruction of 
 Flowing Water. 
 
 The court of equity has jurisdiction in a proper case, not only 
 to determine the question whether a nuisance in fact exists, but tO' 
 make a decree that it be abated. But in such a case it must clearly 
 appear that the complainant has title to the watercourse, or the- 
 land under it, if it be a watercourse that is complained of, and 
 that the nuisance is made out.* A bill to enjoin the obstruction 
 of a stream, alleging that defendant placed obstructions in it a cer- 
 tain distance above complainant's mill, and cut off his right and 
 power to float logs from his lands above the obstructions down tO' 
 his mill, is insufficient in not averring facts showing whether its 
 navigability extends above the obstruction."* 
 
 To divert or unreasonably obstruct a watercourse is a private- 
 nuisance, actionable at law. The jurisdiction of equity to intei- 
 fere in such cases by injunctive relief, to prevent irreparable dam- 
 age and avoid a multiplicity of suits at law, is clear and well 
 
 moicckv.WacJiter, 34 Md. 265; ScJiall v. Nusbaum, 56 Md. 512; Gilbert v. 
 Morris Canal & Bkg. Co. 8 N. J. Eq. 495. 
 
 ^Besso V. Southworth, 71 Tex. 765. 
 
 ^Chicago, B. & Q. R. Go. v. Schaffer, 124 111. 113, 14 West. Rep. 139; Mc- 
 Connell v. Kibbe, 29 111. 483. 
 
 *Earl V, De Hart, 12 N. J. Eq. 280, 287; Van Bergen^. VanBergen,'iSo\\n8. 
 Ch. 272, 1 N. Y. Ch. L. ed. 375; Hammond v. Fuller, 1 Paige, 197, 
 2 N. Y. Ch. L. ed. 614; Mann v. WiUcinson, 2 Sumn. 276; Farnum v. 
 Blackstone Canal Corp. 1 Sumn. 46; Hill v. Sayles, 12 Gush. 454, 457; Shel- 
 don V. Rockioell, 9 Wis. 166; Ackerman v. Horicon Iron Mfg. Co. 16 Wis. 
 154; Wilmarthy. Woodcock, 58 Mich. 482, 66 Mich. 331, 9 West. Rep. 895;. 
 Ronayne v. Loranger, 66 Mich. 373, 10 West. Rep. 520. 
 
 ^Morrison v. Coleman, 87 Ala. 655, 5 L. R. A. 384.
 
 Chap. XXL] RELIEF FROM OBSTRUCTION TO FLOW OF STREAM. 477 
 
 established, the remedy at law being deemed inadequate.' In 
 Massachusetts the right to proceed in equity to abate public nui- 
 sances, in the exercise of tJie police power, where necessary for the 
 protection of the public, has been fully .recognized.' Private 
 persons may seek the aid of a court of equity to restrain or abate 
 a. public nuisance. They must, however, show some special or pe- 
 culiar injury to themselves, distinct from what they suffer in com- 
 mon with the public, in order to succeed.' 
 
 In case of a public nuisance, equitj' will interfere at the instance 
 of a private individual only when the complainant suffers some 
 private, direct and material damage beyond that which is suffered 
 by the public at large, and which, without such interference, will 
 be an irreparable injur}- to him.* A imisance will be enjoined 
 only upon clear and satisfactory evidence that it exists and that it 
 is likely to cause material and irreparable injur}'.* The obstruc- 
 tion must be plainly a nuisance before it can be removed by de- 
 cree.* But that which is declared by a valid statute to be a 
 nuisance is deemed in law to be a nuisance in fact, and should be 
 dealt with as such.' 
 
 Any obstruction in navigable waters is a public nuisance.' 
 Whether wharves and piers constructed by riparian proprietors 
 on the shore of navigable waters are a nuisance or not is a question 
 of fact ; and the presumption is that they are not, and he who al- 
 
 ^Burden v. Stein, 27 Ala. 104; 3 Pom. Eq. Jur. § 13ol; Gardner v. Kew- 
 
 burgh, 2 Johns. Ch. 162, 1 N. Y. Ch. L. ed. 332, 7 Am. Der. 526; Lawson 
 
 V. MenasJia Wooden-Ware Co. 59 Wis. 393; Gould, Waters, § 215; Ulbridit 
 
 V. Eufaula Water Co. 86 Ala. 587. 
 ^Carleton v, Rugg, 149 Mass. 550, 5 L. R. A. 193. 
 ^Henry v. Newburyport, 149 Mass. 582, 5 L. R. A. 179; Bigeloxo v. Uartford 
 
 Bridge Co. 14 Conn. 565; Frink v. Lawrence, 20 Conn. 117; O'Brien v. 
 
 Norwich & W. R. Co. 17 Conn. 372; Corning v. Lowerre, 6 .Johns. Ch. 
 
 439, 2 N. Y. Ch. L. ed. 178; Doolittle v. Broome Co. 18 N. Y. 155; Barnes 
 
 V. Racine, 4 Wis. 454; Ronayne v. Loranger, 66 iSIich. 373, 10 West. Rep. 
 
 518. 
 *Van, Wagenen v. Cooney, 45 N. J. Eq. 24. 
 '^Newark Aqueduct Board v. Passaic, 45 N. J. Eq. 393. 
 ^Mississippi & M. R. Co. v. Ward, 67 U. S. 2 Black, 485, 17 L. ed. 311 ; Penn- 
 
 sylvania v. Wheeling & B. Bridge Co. 54 U. S. 13 How. 518, 14 L. ed. 249. 
 iCarleton v. Rugg, 149 Mass. 550, 5 L. R. A. 193. 
 ^Georgetown v. Alexandria Canal Co. 37 U. S. 12 Pet. 91, 9 L. ed. 1013; 
 
 State V. South Carolina R. Co. 28 S. C. 23.
 
 478 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 leges the contrary must prove it.' But tliat which the law author- 
 izes cannot be a public nuisance." 
 
 Raih'oads and permanent piers constructed by a riparian propri- 
 etor on the shores of navigable rivers, bays and arms of the sea, 
 or on lakes -where they do not extend beyond low-water mark, are 
 not a nuisance unless they are an obstruction to navigation.* 
 Every bridge over a river is not necessarily a nuisance." 
 
 If an erection by whicli navigation is affected results as proposed 
 in its inception in a public benefit, and is in an appropriate situ- 
 ation, and a reasonable space is left for the passage of vessels, it is 
 not an obstruction to be abated. The obstruction to navigation 
 must be specially a nuisance before it can be removed by decree.* 
 
 A dam unlawfully erected or maintained may be regarded as 
 both a public and private nuisance.* If a bridge is a nuisance 
 and an unlawful obstruction to a river, every continuance of said 
 nuisance is a new nuisance; and recovery may be had for each in- 
 jury as it occurs. ' 
 
 ^Dutton V. Strong, 66 U. S. 1 Black, 23, 17 L. ed. 29. 
 
 '^Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. ed. 336; Pennsylvania 
 
 V. Wheeling & B. Bridge Co. 59 U. S. 18 How. 421, 15 L. ed. 435; Miller 
 
 V. New York City, 109 U. S. 3«5, 27 L. ed. 971. 
 ^Button V. Strong, 66 U. S. 1 Black, 23, 17 L. ed. 29. 
 *Milnor v. New Jersey R. & Transp. Co. 70 U. S. 3 Wall. 721, 16 L. ed. 799; 
 
 Mississippi & M. R. Co. v. Ward, 67 U. 8. 2 Black, 485, 17 L. ed. 311. 
 ^Mississippi & M. R. Go. v. Ward, 67 U. S. 2 Black, 485, 17 L. ed. 311; 
 
 Pennsylvania v. Wheeling & B. Bridge Co. 54 U. S. 13 How. 518, 14 L. ed' 
 
 249. 
 •Wood, Nuisance, pp. 16, 23, 354; Barry. Stevens, 1 Bibb, 293; Wesson v. 
 
 Washburn Iron Co. 13 Allen, 95; Bamford v. Turnley, 3 Best & S. 66; 
 
 Wa^ffle V. New York Cent. R. Co. 58 Barb. 413; People v. Townsend. 3 
 
 Hill, 479; Stoughton v. State, 5 Wis. 291; Com. v. Webb, 6 Rand. 726; 
 
 Douglass v. State, 4 Wis. 387; Treat v. Bates, 27 Mich. 390. 
 ''Omaha & R. V. R. Go. v. Standen, 23 Neb. 343.
 
 chaptet: xxtl 
 
 FERRIES -RIGHTS AND LIABILITIES IN. 
 
 Sec. 56. Ferry FrancMse. — Origin. 
 
 Sec. 57. Ferry a Public Highway. — \Mien Exclusive. 
 
 Sec. 58. Assign7nent of Ferry License. — Forfeiture. 
 
 Sec. 59. Ferryman a Common Carrier. — Lialilily. 
 
 Section 5C. — Ferry Franchise.— Origin. 
 
 In a fresh-water stream, not influenced by the tide, the right of 
 private property in one who owns both banks is recognized in 
 many of the States, although the stream be in fact navigable for 
 boats.' The Legislature, except under the power of eminent domain, 
 and upon making compensation, can interfere with such streams 
 only for the purpose of regulating, preserving and protecting the 
 public easement. Further than this it has no more power over 
 these fresh-water streams than over other private property. It 
 may make laws for regulating booms, ferries and bridges, only so 
 far as it is necessary to protect and preserve the public easement, 
 and if it go beyond this it invades private rights which are guarded 
 bv constitutional provisions.* Any person owning the land on 
 both sides of such a river can maintain a ferry or bridge for his 
 OM'n use, provided he docs it so as not to interfere with the public 
 easement,* without regard to legislative action. But a toll cannot 
 be charged without legislative authority, as the ferry then becomes 
 part of a public highway and under legislative control.* But 
 
 ^Chenango Bridge Co. v. Paige, 83 N. Y. 178; ante, p. 394, notes 6, 7, pp. 404, 
 409. 
 
 ^Oanal Comrs. v. People, 5 Wend. 428, 448; Pennsylvania v. Wlifeling & /?. 
 Bridge Co. 59 U. S. 18 How. 431, 15 L. ed. 435; Morgan v. King. 35 N. 
 Y. 454. 
 
 *Castellov. Laridwehr, 28 Wis. 522; Steamboat Globe v. Kurtz, 4 Q.Greene, 433; 
 Scott V. Chicago, 1 Bi.ss. 510; The Vancouver, 2 Sawy. 381. 
 
 *CJienango Bridge Co. v. Paige, 83 N. Y. 178; Mills v. St. Clair Co. 49 U. S. 
 8 How. 581, 12 L. ed. 1206; Fitch v. Nero Haven, N. L. & I. li. Co. 3() 
 Conn. 39; Oreer v. Haugabook, 47 Ga. 282; Uaynes v. Wells, 26 Ark. 464; 
 Henshaio v. Supervisors, 19 Cal. 150; Conway v. Taylor, 66 U. S. 1 Black, 
 603, 17 L. ed. 191; McKobert<i v. Washburn, 10 Minn. ,23; Iludnon v. Cuero 
 L. dc E. Co. 47 Tex. 58; Trustees v. Talman, 13 111. 27.
 
 *4S0 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 where such right to collect toll is conferred by statute the riparian 
 proprietor is usually given the option to establish the ferry.^ But 
 this is not essential to the validity of the franchise, provided com- 
 pensation be made for any use of the bank to the owner, without 
 which no right can be acquired in the bank,'* unless the highway 
 include the bank to navigation/ 
 
 Gray, Ch. J., in Atty-Gen. v. Boston, 123 Mass. 460, says that 
 the definition of ferry in the early books is : "A liberty by pre- 
 scription or the King's grant to have a boat for passage upon a 
 great stream for carriage of horses and men for reasonable tolls." 
 But it cannot in some States be acquired by prescription.' 
 
 A ferry franchise is property,' but it is subordinate to the right 
 of navigation.' It partakes so far of the nature of real estate 
 that it may be partitioned in connection with real property used 
 in the business.' The right of a ferry is a thing inherent in the 
 sovereign. It does not emanate from the soil." The recognition 
 of a ferry by the power having authority to establish one imports 
 its legal existence as a ferry.'" 
 
 In this country, in the States, usually the obtaining of a license 
 to keep a ferry is exclusively a statutory proceeding and the stat- 
 
 ^MulluY. Gavins, 5 Blackf. 77; Collins v. Ewing, 51 Ala. 102; Haynes v. 
 Wells, 26 Ark. 464; Beckley v. Learn, 3 Or. 544; Willard v. Forsythe, 2 
 Mich. N, P. 190; Dunlap v. ToaJaim, 18 Tex. 582. 
 
 ^McCearly v. Swayze, 65 Miss. 351; Collins v. Eioinq, 51 Ala. 102; Hudson v. 
 Cuero L. & E. Co. 47 Tex. 58; Bass v. Fontleroy, 11 Tex. 698; Newton v. 
 Cubitt, 13 C. B. N. S. 32; New York v. New York & 8. I. Ferry Co. 8 
 Jones & S. 232, 245; Doty v. Graham, 5 Pick. 487; Grant v. Drew, 1 Or. 
 85; Mills v. Learn, 2 Or. 215; Averett v. Brady, 20 Ga. 523; Peter v. Ken- 
 dal, 6 Barn. & C. 703; Prosser v. Wapello Co. 18 Iowa, 327. 
 
 ^Fowler v. Mott. 19 Barb. 204; Patrick v. Ruffner, 2 Rob. (Va.) 209; New York 
 V. New York cfc 8. I. Ferry Co. 8 Jones & S. 232, 240; Church v. Meeker, 
 34 Conn. 429; Mills v. Learn, 2 Or. 215; Walker v .' Armstrong , 2 Kan. 198; 
 Somerville v. Wimbish, 7 Gratt. 205; Neioton v. Cabitt, 12 C. B. N. S. 32. 
 
 *Bowman v. Wathen, 2 McLean, 376; Bird v. 8mith, 8 Watts, 434; Leake Co. 
 Suprs. V. McFadden, 57 Miss. 618; Letton v. Goodden, L. R. 1 Eq. 123; 
 Laredo v. Martin, 52 Tex. 548; 3 Bl. Com. 219; Williams v. Turner, 7 
 Ga. 348. 
 
 ^Sullivan v. Lafayette Co. Suprs. 58 Miss. 790; Bird v. 8mith, 8 Watts, 434. 
 
 *McRobei'ts v. Washbui-ne, 10 Minn. 27; Benson v. Neio York, 10 Barb. 228. 
 
 ''Steamboat Globe v. Kurtz, 4 G. Greene, 433, 436; Babcock v. Herbert, 3 Ala. 
 392; The Vancouver, 2 Sawy. 381. 
 
 ^Rohn V. Harris, 130 111. 525. 
 
 ^Grant v. Drew, 1 Or. 38; Peter v. Kendal, 6 Barn. & C. 703; 3 Kent, Com. 
 414, 458; Washb. Real Prop. 264; Beckley v. Learn, 3 Or. 470. 
 
 ^''Smith V. Harkins, 3 Ired. Eq. 613, 44 Am. Dec. 83.
 
 Chap. XXII.] FERRY A PUBLIC HIGU WAY. WHEN EXCLUSIVE. 4S1 
 
 ute must be strictly pursued.' A grant by a county court of a 
 license to keep a ferry is not a contract, Ijut a privilege, subject to 
 any modification the county court may see lit to make." 
 
 The State has power to grant a license to operate a ferry across 
 a stream which constitutes its boundaries.* The fact that the 
 county commissioners' court exceeded its powers in assuming to 
 grant an exclusive ferry privilege will not prevent the grant from 
 being operative to the extent of the power possessed by such court.* 
 The establishment of a ferry over a river constituting the bound- 
 ary between a State and a foreign country is not an interference 
 with foreign commerce, and is a matter within the discretion of 
 the States i-espectively, and not of Congress.* The operation of 
 an unlicensed ferry is unlawful, and a licensee is entitled to pro- 
 tection against a competition carried on in violation of law.' But 
 running a free skiff within a mile of a licensed ferry, as an induce- 
 ment to persons to trade at the store of the owner, docs not sub- 
 ject such owner to a jDcnalty for running a ferry for hire, where 
 the persons carried did not agree to buy anything at the store.' 
 
 Section ^"l.— Ferry a Pithlic Highway.— Wlien Ex- 
 clusive. 
 
 As a link in the chain of transportation on dry land a ferry 
 forms a part of the public highway or a connecting link between 
 places in which the public has rights, and as such it is a thing of 
 jmblic interest and in which the public have a right of way or use 
 on paying certain specified tolls, regulated and prescribed by pub- 
 lic authority ; this is evident from the nature of the franchise and 
 
 ^Minard v. Douglas County, 9 Or. 206; Rohiniton v. Mathirick, 5 Neb. 255; 
 
 State V. Otoe County Comrx. 6 Neb. 132; Doody v. Vaughn, 7 Neb. 28; 
 
 Damp V. Dane, 29 Wis. 428. 
 ^Sullivan V. Lafayette Co. Su2)?'S. 58 ^Miss. 790; Cliarles River Bridge v. TTrt?-- 
 
 ren Bridge, 36 U. S. 11 Pet. 536, 9 L. ed. 819. 
 ^Marshall v. Grimes, 41 Miss. 27; Wiggins Ferry Co. v. En.'^t St. Louis, 102 
 
 111. 560; Jones v. Johnson, 2 Ala. 746; TugtceU v. Eagle Pass Ferry Co. 74 
 
 Tex. 492. 
 *TugiDell V. Eagle Pass Ferry Co. 74 Tex. 492. 
 ''Gibbons v. Ogden, 22 U. S. 9 Wheat. 1. 214. 6 L. ed. 23, 74; Tugircll v. 
 
 Eagle Pass Ferry Co. 74 Tex. 492; Elizabethport dc N. T. Ferry Co. v. 
 
 United States, 5 Blatcbf. 198. 
 ^Tugwell v. EagU Pass Ferry Co. 74 Tex. 492. 
 '/S7w>i?i V. Cottoti, 52 Ark. 90. 
 
 31
 
 482 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 the use and purposes for which ferries are licensed and established, 
 forming part of a public passage or highway wherever rivers or 
 waters are to be passed in boats, and any obstruction of the use 
 thereof is a nuisance.' 
 
 A public ferry is a public highway of a special description, and 
 its termini must be in places where the public have rights, as towns 
 or villages, or highways leading to towns or villages." The limit 
 is high-water mark.* It exists in respect to persons using the 
 right of way when the line of way is across water ; there must be 
 a line of way on laud leading to a landing place on the water's 
 edge.* 
 
 A ferry is included within the general term " highway." * If a 
 ferry is not in gross but appurtenant to land it passes in a convey- 
 ance " with the appurtenances." ' But under a statute giving an 
 action for damages arising from a defect in a " highway, causeway 
 or bridge," damages, it has been ruled, cannot be recovered for in- 
 juries resulting from defects in a flat-boat, used by the county 
 commissioners as a ferry connecting highways on the opposite 
 sides of the river.'' 
 
 Where a stream crosses a public highway the continuity of the 
 way is not broken ; it does not end on one side of the stream and 
 begin on the other, but continues across the stream ; and the pub- 
 lic, for the purposes of travel, have the same right to go on the 
 water over the highway that they have to pass along other por- 
 tions of it ; but as the water forms a physical obstruction to indi- 
 viduals, it is necessary that some convenient means of transporta- 
 tion shall be furnished, and the simplest and most economical in 
 most cases is by a ferry.* 
 
 ^HacTcett v. Wilson, 12 Or. 25; Burlington & H. Ferry Co. v. Davis, 48 Iowa, 
 
 133. 
 ^Lord Abinger in Huzzey v. Field, 2 Cromp. M. & R. 432, 442. 
 ^State V. Wilson, 42 Me. 9. 
 '^Newton v. CuUtt, 12 C. B. N. S. 82, Willis, J. 
 '^Bidelman v. State, 110 N. Y. 232, 13 Cent. Rep. 403; Dundy v. Chambers, 
 
 23 111. 372; Rex v. Nicholson, 12 East, 334. 
 •i?e«7. V. Qreat Northern R. Co. 14 Q. B. 25; Harthcock^. Swift Island Mfg. 
 
 Co. 72 N. C. 410; Biggs v. Farrell, 12 Ired. L. 1. 
 ''Chick V, Newberry & Union Counties, 27 S. C. 419. 
 ^Sullivan v. Lafayette Co. Suprs. 58 Miss. 799; Hudson v. Cu^ro L. & E. Co. 
 
 47 Tex. 56; Seal v. Donnelly, 60 Miss. 662; Taylor v. Wilmington & M. R. 
 
 Go. 4 Jones, L. 282, 285; Hartford Bridge Co. v. Union Ferry Co. 29 Conn. 
 
 239.
 
 Chap. XXIL] FERRY A PUBLIC HIGHWAY. — WHEN EXCLUSIVE. 483 
 
 The principle to be deduced from the authorities upon the nat- 
 ure of the franchise, and the uses and purposes for whicli a ferry 
 is licensed and established, is that the ferry can only exist in con- 
 nection with some highway or place where the public have rights. 
 The grant of a ferry franchise for the transportation of persons 
 and property across a stream in a place where there is no highway, 
 or in which the public have no rights, would be void and inopera- 
 tive. The object of a ferry being to connect places or highways 
 in which the public have rights, when intersected by streams, it 
 becomes, when licensed and established, a part of such highway or 
 line of travel between such places. When, therefore, the author- 
 ity in which jurisdiction is vested has exercised such jurisdiction 
 by granting a license to supply the public convenience, and the 
 ferry is established, connecting such highway or places, thus form- 
 ing a continuous line of transportation, it has exhausted its juris- 
 diction as to such places or highways, while such franchise exists 
 as a link or part of the highway on the line of travel between such 
 places or highways; and where the primary object to be accom- 
 plished by the State in conferring jurisdiction is to secure public 
 accommodation to the persons licensed to keep the ferry, and the 
 exclusive privilege of transporting all persons and property be- 
 tween such places or highways, another ferry at such places or 
 highways cannot be established without violating the exclusive 
 privileges secured by the franchises granted to the ferry already 
 established and which forms a part of such highway and is designed 
 and required to accommodate all persons on paying the required 
 tolls passing along the line of travel between such places or high- 
 ways. The reason is that the ferry is established for the purpose 
 of taking up the highway, so to speak, and uniting it into one con- 
 tinuous highway or line of travel for the public accommodation; 
 and as a protection for the expense and delay for thus serving the 
 public convenience, the license gives the exclusive privilege of 
 carrying all persons and property coming on the line of such high- 
 way and the river bank for transportation.' A second ferry can- 
 not be established without compensation to the one already existing 
 under exclusive privileges, in which case the common-law doctrine 
 
 ^Enfield Toll Bridrje Co. v. Hariprd & N. 11. R. Co. 17 Conn. 40; Mc Roberta 
 V. Washburne, 10 Minn. 23.
 
 4:S4 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 of ferries applies.' But where the charter gives no exclusive priv- 
 ileges as against the public, such privileges cannot be implied,' 
 and where the exclusive privileges conferred are confined to the 
 ferry landings, the privileges will not be extended on each side so 
 as to prevent the licensing of contiguous and rival ferries, where 
 the public accommodation requires it.^ But when the grant is 
 exclusive, and occupies the highway, there is no room to establish 
 another ferry, for the ferry already established, by forming a part, 
 continues the highway over the water and occupies that place. It 
 may be said that the highway is already laid out over the water 
 where such ferry is established during the period for which the 
 franchise is granted, and till it expires or is revoked or forfeited, 
 it would not be within the jurisdiction, under the power to grant 
 a license to keep a ferry for the accommodation of the public, to 
 establish a ferry where there was neither highway nor public place, 
 and therefore such a ferry could not be established just outside 
 or beyond the line of the highway, where a public ferry already 
 existed.* 
 
 If an existing ferry furnish insufficient accommodations to the 
 public the proper authority may revoke the license, but cannot, 
 unless the power is continued for future use, for that or any cause 
 establish another ferry.^ An order granting a ferry license is not 
 void because it fails to show that the licensee is the owner of one 
 or both sides of the river on which the ferry is located, or that the 
 prior right has been devested.* IS'or is a literal compliance with 
 the statute as to posting notices upon an application for a ferry 
 necessary.'' After a license to keep a ferry has been granted to 
 the recognized owner and occupant of the adjacent soil, the recov- 
 ery of possession of the soil by the real owner thereof does not 
 operate to revoke such license. But it continues in the name and 
 
 ^Enfield Toll Bridge Uo. v. Hartford & N. H. B. Co. 17 Conn. 40; McRoherts 
 V. Washburne, 10 Minn. 23. 
 
 ^Charles River Bridge v. Warren Bridge, 36 U. S. 11 Pet. 506, 9 L. ed. 819; 
 Hopkins v. Great K B. Co. L. R. 2 Q. B. Div. 224; Wright v. Shorter, 56 
 Ga. 72; Mason v. Harper's Ferry Bridge Co. 17 W. Va. 396; Chenango 
 Bridge Co. v. Lewis, 63 Barb. Ill; Washington Toll Bridge Co. v. Beau- 
 fort, 81 N. C. 491. 
 
 « *Hackett v. Wilson, 12 Or. 25. 
 
 ^Lamar v. Marshall County Ct. Comrs. 21 Ala. 772. 
 
 ^Collins V. Eicing, 51 Ala. 103. 
 
 •'Drew V. Gant, 1 Or. 197.
 
 Chap. XXIL] ASSIGNMENT OF FERRY LICENSE. — FORFEITURE. 4S5 
 
 right of the grantee thereof, and not of the real owner of the soil.* 
 Parties who have petitioned the proper authorities for the estab- 
 lishment of a ferry are estopped to deny the legality of the license 
 granted.'' 
 
 Section 58. — Assi^mnent of Ferry License- 
 Forfeiture. 
 
 Upon the question of the validity of the assignment of a ferry 
 license there is no doubt some contrariety of opinion among the 
 authorities. In Nott v. Fursh, 2 Or. 237, it was held that a ferry 
 license granted to another than a riparian owner is a mere personal 
 trust upon conditions, and his liability cannot be removed by sub- 
 stitution, but such license terminates upon the decease of the per- 
 son to whom it was granted. This decision has been the subject 
 of much adverse criticism. As authorities to sustain this view it 
 cites Munro v. Thomas, 5 Cal. 470, and Thomas v. Armstrong, 7 
 Cal. 286. And these in turn have been approved and followed in 
 Wood V. Trucliee Turnjpike Co., 24 Cal. 474, and People v. Dun- 
 can, 41 Cal. 510. 
 
 The license is regarded as a special privilege conferred by the 
 government upon the individual which does not belong to the cit- 
 izens generally and by common right. The grant of such a fran- 
 chise or special privilege to the individual is considered one of 
 special personal trust and confidence, which cannot be assigned 
 nor be the subject of sale under execution." And again it has 
 been said that a ferry license is in the nature of an appointment 
 to office having certain fees annexed, to be held at the pleasure of 
 the appointing power.* On the other hand it is contended that 
 the right given by a ferry license is a franchise which is as much 
 property as any other incorporeal hereditament ; that a franchise 
 
 ^McCearly v. &wayze, 65 Miss. 351. 
 
 ^Burlington v. Gilbert, 31 Iowa, 356; Burlington, G. R. & M. R. Co. v. 5/^- 
 
 art. 39 Iowa, 267; Kellogg v. Ely, 15 Ohio St. 66; Ferguson v. Landram, 
 
 5 Bush, 230. 
 
 L 307; Ammnnt v. Pittsburgh Turnpike Co. 13 Serg. & R. 210; Lombard 
 V. Cheever, 8 111. 473; Herm. Ex. §^ 131, 361: Ang. & A. Corp. § 191; 
 Redf. Railways, 419, 422; Freeman, Ex. § 179. 
 *Bay V. Stetson, 8 Greenl. 370.
 
 486 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 was by the common law said to be a franchise of the King's pre- 
 rogative in the hands of the subject," but that in America it was 
 understood to be a particular privilege conferred by grant from 
 the government vested in individuals.'' Chancellor Kent says 
 that the estate in such a franchise and an estate in lands rest upon 
 the same principle, being equal grants of a right or privilege for 
 an adequate consideration.' 
 
 In Conway v. Taylor, QQ U. S. 1 Black, 232, 17 L. ed. 191, it 
 is said : "A ferry franchise is as much property as a rent or any 
 other incorporeal hereditament or chattel or realty ; it is clothed 
 with the same sanctity and entitled to the same protection as other 
 property." In Lippencott v. Alkmder, 27 Iowa, 460, it was held 
 that a ferry license was not vacated nor the franchise lost by tlie 
 death of the party to whom it was granted, but passed to his rep- 
 resentatives." These decisions are in direct conflict with Wott v. 
 F'ursTi, supra, and disprove the reasoning of the authorities cited 
 to sustain it. It should be observed, however, that the Iowa Stat- 
 ute makes certain provisions for the sale of such franchises as real 
 property on an execution, which were referred to in the opinion 
 as strengthening the view therein expressed. In Mississippi it is 
 assignable.^ 
 
 In Billings v. Breinig, 45 Mich. 70, it was held that the fran- 
 chise of keeping a ferry is property having a value incident to 
 other kinds of proj)erty and transferable from the original grantee 
 to others, subject to the conditions lawfully imposed and to such 
 governmental control as results from its public nature.* It thus 
 appears that some diversity of opinion exists in the authorities as 
 to the right to sell or assign a ferry franchise or whether the same 
 is affected by death. That it may be done when the consent of 
 the power that granted it has been obtained does not seem to be 
 questioned. 
 
 If it be true that the franchise is a personal trust and not assign- 
 able, without the consent of the granting power, then the right to 
 
 12B1. Com. 37. 
 
 «33 Kent, Com. 458. 
 
 *See also Leioisv. Gainsville, 7 Ala. 85; Greer v, EaugabooTc, 47 Ga. 282. 
 
 ^McCearly y. Swayze, 65 Miss. 351. 
 
 ^Bowman v. Wathen, 2 McLean, 376; Felton v. Denll, 22 Vt. 170; Benson v. 
 
 Neic York, 10 Barb. 223; Ladd v. Clwtard, 1 Minor, 306; Willoughby v. 
 
 Horridge, 16 Eng. L.''«fc Eq. 437; Dundy v. Chambers, 23 111. 370.
 
 Chap. XXII.] ASSIGNMENT OF FERRY LICENSE. — FOREEITL'KE, 487 
 
 object to the transfer of the franchise and its exercise by the party 
 to wliom it was originally granted, is a right affecting the public 
 which it belongs to its officers to take advantage of by the proper 
 proceedings, and it cannot be collaterally assailed.' The legality 
 of ferry privileges cannot be inquired into except upon a direct 
 proceeding thereon,' and clearly the assignment of a franchise 
 cannot be questioned either collaterally or by an individual whose 
 rights are not affected by it.' It may be lost by nonuser/ but a 
 ferry franchise will not be forfeited for nonuser, where it appears 
 that when the ferry was not operated the owners maintained a 
 sufficient bridge for the accommodation of the public, and that 
 after the destruction of the bridge they had again maintained and 
 operated the ferry for five years before the commencement of the 
 proceedings.' 
 
 The previously acquired ferry right of a nonresident owner is 
 not affected by Ky. Gen. Stat., chap. 42, § 9, subs. 3, which pro- 
 vides for the revocation of the grant on the sale of the right to a 
 nonresident unless he transfers it within a 3'ear to a resident.' 
 Where an assignment or lease of a ferry can be made legally, the 
 terms are of course matter of contract between the parties, subject 
 to interpretation and enforcement in the courts. Where the lease 
 of a ferry with which the lessee has a railroad connecting provides 
 that the lessor shall have a per cent of the gross receipts of the 
 ferry, and the only provision as to fare over the ferry is that it 
 shall not be less than 5 cents, if the lessee maintains the fare at 5 
 oents the lessor is not entitled to a per cent on the whole fare 
 charged for passage over both the ferry and the railroad, but 
 only on that part to which the ferry would be entitled under a 
 fair division.' 
 
 ^People V. Duncan, 41 Cal. 508; Conner -v. Paxson. 1 Blackf. 1G8; Collins v. 
 
 Ewing, 51 Ala. 101; Hackett v. Wilson, 12 Or. 25. 
 ^Conner w. Paxson, 1 Blackf. 168; Churchill v. Orundy, 5 Dana, 99. 
 ^Crolley V. Minneapolis & St. L. R. Co. 30 Minn. 541; Patricks. Ruffners, 2 
 
 Rob. (Va.) 209, 40 Am. Dec. 745; Elizabeth City Academy v. Lindsay, 6 
 
 Ired. L. 476. 45 Am. Dec. 500: Oakland R. (Jo. v. Oakland, B. & b . V. R. 
 
 Co. 45 Cal. 365; Goine v. Allen, 4 Busb, 608; Ihornpson v. Ae/r York &U. R. 
 
 Co. 3 Sandf. Ch. 625, 7 N.Y. Cb. L. ed. ^d^; Matthew v. Offley. 3 Sumn. 115. 
 *Brearly v. Norris, 23 Ark. 514; Jeffersonville v. 27ie John Shallcrons, 35 lud. 
 
 19; Greer v, Haugabook, 47 Ga. 282. 
 ^Com. V. Hulings, 129 Pa. 317. 
 
 *Dufour V. Stacey (Ky. June 19, 1890) 14 S. W. Rep. 48. 
 ''Staten Island Rapid Transit R. Co. v. New York, 119 X. Y. 9G.
 
 488 IMPOSED DUTIES, PERSONAL. [Part IL 
 
 Section Z^.— Ferryman a Common Carrier.— 
 LiaMlity. 
 
 A ferryman is a common carrier, and his "liability begins wlien 
 the traveler is directed to proceed.' One who controls a ferry is. 
 charged with the duties of a common carrier." He is under obli- 
 gation in reasonable charges to accept all passengers and provide 
 safe and suitable accommodation for them,^ and is answerable for 
 negligence for any injury received, through failure to comply with 
 his obligation." He must furnish a safe landing.' 
 
 One who enters upon a passenger steamboat in good faith to 
 take passage thereon is there in the relation and character of a 
 passenger, and the owner of the boat owes to him the duty of a 
 carrier of passengers, although no fare has been paid.' "While 
 a ferry company is bound to use the strictest diligence in provid- 
 ing suitable and safe accommodation for the landing of passengers 
 from its boats, it is not bound to so provide against any possibility 
 of danger that they may meet with some casualty.' Still a car- 
 rier is not relieved from liability to a passenger injured by a ferry 
 boat striking the wharf with great force, though the oflBcers in 
 charge of the boat possessed skill, knowledge and experience, and 
 
 ^Miles V. James, 1 McCord, L. 157, 159. 
 
 ^Terkes\. Sabin, 97 Ind. 142; Dudley v. Camden & P. Ferry Co. 42 K J. 
 L. 25; Burton v. West Jersey Ferry Co. 114 U. S. 474, 29 L. ed. 215; Slim- 
 mer V. Merry, 23 Iowa, 90; Loftus v. Union Ferry, 84 N. Y. 455; White v. 
 Winnisimmet Co. 11 Cush. 155. 
 
 'RicJiards v. Fuqua, 28 Miss. 792; Wallen v. McHenry, 3 Humph. 245. 
 
 *DelzeUv. Indianapolis & G. R. Co. 32 Ind. 45; Oakland R. Co. v. Fielding, 
 48 Pa. 321; Simmons v. New Bedford, V. & N. Steamboat Co. 97 Mass. 
 361; Kennedy v. Ryall, 67 N. Y. 379. 
 
 ^Wyckoff V. Queens Co. Ferry Co. 52 N. Y. 32; Dudley v. Camden <& P. Ferry^ 
 Co. 42 N. J. L. 25; Le Barron v. East Boston Ferry Co. 11 Allen, 312; 
 Blnkeley v. La Due, 19 Minn. 187; Richards v. Fuqua, 28 Miss. 792; 
 Walker v. Jackson, 11 Mees. & W. 161: Whitinore v. Bowman, 4 G. Greene, 
 148; Wilson v. Hamilton, 4 Ohio St. 722; Powell v. Mills, 37 Miss. 691; 
 Albright v. Penn, 14 Tex. 290; Wilson v. Slmlkin, 6 Jones, L. 375; Wil- 
 ovghby v. Horridge, 12 C. B. 742, 749; Hazman v. Hoboken Land Co. 
 50 N. Y. 53; WJiite w .Winnisimmet Co. 7 Cush. 155; Fisher v. Ciisbee, 12 
 111. 344; Clark v. Union Ferry Co. 35 N. Y. 485. 
 
 ^Cleveland v. New Jersey Steamboat Co. 68 N. Y. 306. 
 
 '^Loftus V. Union Ferry Co. 84 N. Y. 455.
 
 Chap. XXIL] FERRYMAN A COMMON CARRIER. LIABILITY. 4S9 
 
 exercised those qualities, unless they possessed them in such degree 
 as the carrier was bound to provide ; ' and the fact that thousands 
 of persons pass over a ferry without injury is no excuse to a ferry 
 company for not making adequate provision where a place is ob- 
 viously dangerous.' ' The mere failure of a steam ferry company 
 to provide a seat for a passenger in its boat is nut of itself proof 
 of negligence.* 
 
 Where a ferry company is accustomed to put up chains and to 
 let them down when it is safe for passengers to leave or enter tlio 
 ferry boat, a passenger is not guilty of negligence who proceeds, 
 relying upon the absence of the guard, which has been let down 
 too soon by the one in charge.* But a passenger on a ferry boat, 
 who attempts to leave by the gang-way for teams, instead of that 
 intended for passengers, and is injured by the guard-chain being 
 dropped on his leg, is guilty of such contributory negligence as to 
 preclude a recovery.* Where a ferry boat strikes the wharf with 
 such force as to cause the boat to rebound and throw a man 2 or 
 3 feet from the head of a stairway down the stairs, the fact that 
 he was about to descend when the boat touched is not of itself con- 
 tributory negligence, where he had no reason to think that the 
 boat would touch in other than the ordinary way, and it is not 
 shown that he would have been in danger had it toached in the 
 ordinary way.° The carrier is not released from liability because 
 a passenger on a ferry boat, thrown down stairs by the boat com- 
 ing in contact with the wharf with a sudden shock, descended the 
 stairs without taking hold of the railing, where it does not appear 
 that it would be dangerous, under ordinary circumstances, not to 
 have the hand on the railing before the shock that might be an- 
 ticipated should occur.' 
 
 A ferryman is not chargeable as a common carrier for the abso- 
 
 ^Bartlett v. New York & S. B. F. & S. Tramp. Co. 25 Jones & S. 848. 
 •^Bartholomew v. Poughkeepsie cD H. Ferry Co. (Sup. Ct. Dec. 9, 1889) 28 N. 
 
 Y. S. R. 388. 
 ^Burton v. West Jersey Ferry Co. 114 U. S. 474, 29 L. ed. 225. 
 *Ferris v. Union Ferry Co. 36 N. Y. 312. See Uaznan v. Hohoken L. <& 1. 
 
 Co. 2 Daly, 130, 50 N. Y. 53. 
 ^Graham v. Pennsylvania R. Co. 39 Fed. Rep. 590. 
 « ■'Bartlett v. Mw York & S. B. F. & 8. Transp. Co. 25 Jones & S. 34a
 
 490 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 lute safety of property retained by a passenger in his own custody, 
 and under his own control. One who drives his horses upon a 
 ferry boat and retains the control and custody of them is without 
 remedy for their loss from fright at the bell being sounded, where 
 they jumped overboard, because he failed to exercise proper care 
 and oversight over them.' The property in such cases is not at 
 the sole risk of either party. The ferryman assumes its care and 
 safety as against any defects in his boat, or the want of proper 
 means and their proper use for the security of property committed 
 to him, as well as for the reasonable skill and care of himself and 
 his servants. In accepting the transportation of horses and car- 
 riage for hire, he is responsible for diligence, care and skill on his 
 and their part, and is bound to provide such safeguards as, under 
 all ordinary circumstances, would save the owner from loss. If 
 the owner retains possession of his property and assumes the care 
 of it he also is bound to exercise ordinary care and prudence in 
 the management of it, to prevent loss or injury, for the doctrine 
 of contributory negligence is applicable to this class of cases.' If 
 his failure to be within reach of his horses results in their loss, 
 when he has assumed their control, he cannot recover.' Where 
 the carriage is gratuitous, the ferryman is only answerable for 
 gross negligence.* 
 
 In Grill v. General Iron Screw Collier Co.^ L. R. 1 C. P. 600, 
 where the propriety of establishing degrees of negligence was 
 questioned, it was admitted that the line between the degrees of 
 care cannot be disregarded. The absence of the requisite care is 
 the presence of negligence. Where a lesser degree of care is due 
 its absence shows a greater degree of negligence. It is unimport- 
 ant, therefore, whether it is termed gross negligence or the absence 
 of slight care. A gratuitous bailee, who accepts goods for trans- 
 
 ' WJiite V. Winnisimmet Co. 7 Cush. 155. 
 
 ^ Clark V. Union Ferry Co. 35 N. Y. 485; Wyckoff^. Queens Co. Ferry Co. 53 
 
 N. Y. 32; Dudley yr. Camden & P. Ferry Co. 43 N. J. L. 35; Willoughby 
 
 V. Horridge, 12 C. B. 743. 
 ^Dudley v. Camden & P. Ferry Co. 42 N. J. L. 25. 
 *Dudley v. Camden & P. Ferry Co. 42 N. J. L. 25. See also Fonier v. Essex 
 
 Bank, 17 Mass. 479; Edson v. Weston, 7 Cow. 278; Beardslee v. Richardson, 
 
 11 Wend. 25; McCarthy v. Toung, 6 Hurl. & N. 339.
 
 Ohap, XXII.] FERRYMAN A COOION CARRIKR. LIARILITY. 401 
 
 portation on a ferry, is liable only for the omission of that fare 
 which the most inattentive and thoughtless of men never fail to 
 take of their own affairs.' 
 
 Although the act in which a corporation may be engaged at the 
 time it is guilty of a tort may be beyond its power as a corpora- 
 tion, this fact will not relieve it from liability." 
 
 ^Dudley v. Camden & P. Ferry Co. 42 N. J. L. 25. 
 
 ^linsman. v. Beloidere Delaware R. Co. 26 N. J. L. 148, 69 Am. Dec. 565; 
 
 Hew York, L. E. d- W. R. Co. v. Unrinfj, 47 N. J. L. 137. 54 Am. Rep. 
 
 123; Central R. & Bkg. Co. v. Smith, 76 Ala. 572, 25 Am. liep. 3.J3; Biif 
 
 fett V. Troy & B. R. Co. 40 N.Y. 168; Hutchinson v. Western tfc A. R. Co- 
 
 6 Heisk. 634.
 
 CHAPTEE XXIII. 
 
 FISHERIES AND HUNTING PRIVILEGES. 
 
 Sec. 60. Fislmig Privileges a Property Right of State Citizenship^ 
 Sec. 61. Usage as Affecting Fishery Rights. 
 Sec. 63. Fishery Rights Commoti to All or Vested in Individuals. 
 Sec. 63. Private Fisheries. 
 
 Sec. 64. Restrictio7is upon Fishing and Htmting Rights. 
 Sec. 65. Game and Forestry Laius. 
 
 Sec. 66. Distinction letiveen NavigaUe Rivers and Mere Logging- 
 Streams as Affecting Fishing and Hu7iting Rights. 
 Sec. 67. Regulation of Fisheries by Statute. 
 Sec. 68. Destruction of Nets Illegally Used. 
 Sec. 69. Oyster Fisheries. 
 
 Sec. 70. Injury to Fishery hy Negligent Navigation. 
 Sec. 71. Protection and Propagation of Fish. 
 Sec. 73. Statutes for the Preservation of Game. 
 
 Section 60. — Fishing Pidvileges a Property Fdght of^ 
 State Citizenship. 
 
 Prior to the Eevolution, the shore and lands under water of the 
 navigable streams and waters of the North American Colonies 
 belonged to the King of Great Britain, as a part of the jura 
 regalia of the Crown, and devolved to the States by right of 
 conquest. The land remains subject to all other public uses as 
 before, especially to those of navigation and commerce, which are 
 always paramount to those of public fisheries.' And the purpose 
 of such navigation is immaterial, whether for commerce or pleasure.* 
 
 If land on the coast be reclaimed from the sea, or if piers or 
 wharves be extended into the sea, such land and structures are a. 
 part of the territorj'' of the State whose shores they adjoin." 
 
 ^Stockton V. Baltimore & N. 7. B. Co. 3a Fed. Rep. 9, 1 Inters. Com. Rep. 
 
 411. 
 ^West Roxbury v. Stoddard, 7 Allen, 158, 171; Atty-Gen. v. Lonsdale, L. R. 
 
 7 Eq. 377; Atty-Gen. v. Woods, 108 Mass. 436; The Montello, 87 U. S. 20' 
 
 Wall. 430, 22 L. ed. 391. 
 
 ^Pollard V. Hagan, 44 U. S. 3 How. 213, 11 L. ed. 565; Weber v. State Har- 
 bor Comrs. 85 U. S. 18 Wall. 57, 21 L. ed. 798; Barney v. Keokuk, 94 U. 
 S. 324, 24 L. ed. 224; Com. v. Roxbury, 9 Gray, 451; Com. v. Alger, 7 
 Cusb. 53; Boston y. Richardson, 105 Mass. 351; Galveston v. Menard, 2S- 
 Tex. 349.
 
 Chap. XXIII.] FISHING PRIVILEGES A RIGHT OF CITIZENSHIl'. 493 
 
 In McCready v. Virginia, 94 U. S. 391, 24 L. ed. 248, it is said 
 in the opinion that "the precise question to be determined is 
 whether the State of Virginia can prohibit the citizens of other 
 States from planting oysters in Ware River, a stream in tliat State, 
 where the tide ebbs and flows, when its own citizens have that 
 privilege. The principle has long been settled in this court that 
 €acli State owns the beds of all tide-waters within its jurisdiction, 
 unless they have been granted away." * " In like manner the States 
 own the tide-waters themselves, and the fish in them so far as they 
 are capable of ownership while running. For this purpose the 
 State represents its people, and the ownership is that of the people 
 in their united sovereignty.'" "The title thus held is subject to 
 the paramount right of navigation, the regulation of which, in re- 
 spect to foreign and interstate commerce, has been granted to the 
 United States. There has been, however, no such grant of power 
 over the fisheries. These remain under the exclusive control of 
 the State, which has consequently the right in its discretion to a]>- 
 propriate its tide-waters and their beds to be used by its people as 
 a common for taking and cultivating fish, so far as it may be done 
 without obstructing navigation. Such an appropriation is in effect 
 nothing more than a regulation of the use by the people of their 
 -common property. The right which the people of the State thus 
 acquire comes, not from their citizenship alone, but from their 
 oitizenship and property combined. It is in fact a property right, 
 and not a mere privilege or immunity of citizenship." 
 
 Whatever rights, if any, a citizen of the State of New York 
 might have obtained under the common law b}' long possession 
 and user of an oyster bed in any of the common or public lands 
 of the State, no such rights could be obtained by a nonresident of 
 the State, or retained by a former resident after he had removed 
 from the State.' Under K Y. Fen. Code, § 441, making it a 
 misdemeanor for a person who is not an actual inhabitant and resi- 
 dent of the State to plant oysters without the consent of the owner, 
 
 ^Citing Pollard v. Hafjan, 44 U. S. 3 How. 212, 11 L. ed. 565: Smith v. 
 Maryland, 59 U. S. 18 How. 74, 15 L. ed. 270; Mumford v. Wardtrell, 73 
 U. S. 6 Wall. 423-436, 18 L. ed. 756-760; Weber v. State Harbor Comra 
 85 U. S. 18 Wall. 66, 21 L. ed. 802. 
 
 'Citing Martin v. Wtddell, 41 U. S. 16 Pet. 410. 10 L. ed. 1013. 
 
 ^Huntington v. Lowndes, 40 Fed. Rep. G25.
 
 4:94 IMPOSED DUTIES, PERSONAL. [Part IL 
 
 planting by a nonresident without the owner's consent constitutes- 
 the oli'ense ; and the question as to intent to violate the law is im- 
 material.' 
 
 Whatever soil below low-water mark is the subject of exclusive 
 property and ownership belongs to the State on wdiose maritime 
 border, and within whose territory, it lies, subject to any lawful 
 grants of that soil by the State or the sovereign power which gov- 
 erned its territory before the Declaration of Independence." But 
 this soil is held by the State not only subject to, but in some sense 
 in trust for, the enjoyment of certain public rights, among which 
 is the common liberty of taking fish, as well shell-fish as floating- 
 fish.' 
 
 On the grant from Charles II., Duke of York, of what is now 
 ]^ew Jersey, the soil under the navigable waters, with the right of 
 fishing, both for shell-fish and floating fish, passed, as an incident 
 of sovereignty, in trust for the public." Such soil and rights of 
 fishing passed to the twenty -four proprietors from the Duke of 
 York, and from them back to the Crown, upon their surrender in 
 1702. By the Kevolution they passed from the Crown to the State 
 of New Jersey.' Whatever soil below high-water mark is within 
 the exclusive ownership of a State is held by it subject to and in 
 trust for the enjoyment of the public rights of fishery, and is un- 
 der the control of the State to regulate the modes of that enjoy- 
 ment, so as to prevent acts which would render the public right 
 less valuable or destroy it altogether.' The right of fishing in 
 the sea or rivers either for swimming fish or for shell-fish is a pub- 
 lic right which belongs to all the inhabitants of the locality, unless 
 restricted by law or local regulation, or by prescription. A grant 
 to a town of a title in the bed of a river, or in flats covered by tide- 
 water within its limits, does not convey by implication the right of 
 fishing to the town as its property, for the right of fishing, not be- 
 ing an incident to the right of pro^^erty in the soil, but a public 
 
 ^People V. Loiondes, 55 Hun, 469. 
 
 ^Pollard V. Harjan, 44 U. S. 3 How. 312, 11 L. ed. 565; 31artin v. Wadd^ll, 
 
 41 U. S. 16 Pet. 367, 10 L. ed. 997; Den v. Jersey Co. 56 U. S. 15 How. 
 
 426, 14 L. ed. 757. 
 ^Smith V, Maryland, 59 U. S. 18 How. 74, 15 L. ed. 270. 
 * ^Martin v. WaddeU, 41 U. S. 16 Pet. 367, 10 L. ed. 997; RusseU v. Jersey,- 
 
 Co. 56 U. S. 15 How. 426, 14 L. ed. 757. 
 ^Smith V. Maryland, 59 U. S. 18 How. 71, 15 L. ed. 269.
 
 Chap. XXIII.] FISHING PRIVILEGES A EIGHT OF CITIZENSHIP. 495 
 
 right to take the fish, which, whether moving in the water or iiii- 
 hedded in tlie mud covered by it, depend upon tlie water for their 
 nourishment and existence, is unaffected by the question whetlier 
 the title to the land is in the State, or in the town, or in private 
 persons.' In exercising this right the public may rake the soil or 
 excavate it." The right and duty to regulate, control and protect 
 the fisheries in navigable waters along the shores of the ocean and 
 of the Great Lakes has alwaj's been within the province of the 
 States owning the adjacent territory.' One owning all around a 
 lake may not take fish contrary to statute if the lake connects with 
 public waters." For the pui-pose of regulating fishing therein, a 
 State may claim jurisdiction over a bay within its borders, the 
 headlands at the mouth of which are less than two marine leagues 
 apart, although the distance between the opposite shores of the 
 bay within the headlands is more than that ; and it may prevent a 
 citizen of another State from taking fish in such bay, although he 
 is using a vessel duly enrolled and licensed under the laws of the 
 United States for carrying on such fishery, at least in the absence 
 of any law of Congress relating to the subject and of all discrimi- 
 nation against citizens of other States.* The power of the Legis- 
 lature to regulate the rights of fishing and other public rights is 
 very broad. Thus, it may regulate the time and manner of fishing 
 in the sea within its limits, and may grant exclusive rights of fish- 
 ing." Instances of the exercise of this power in regard to the 
 great ponds are found in the various statutes leasing such ponds to- 
 individuals, which have been held to be valid, although they grant 
 exclusive rights to individuals and exclude others from the exer- 
 cise of rights to the use of the ponds to which they were before 
 
 ^Proctor ^. Wells, 103 Mass. 216; Coolidge v. Williams, 4 Mass. 140; Randolph 
 V. Braintree, Id. 315; Dill v. Wareham, 7 Iklet. 438; Weston v. Sampson, 8 
 Cush. 347; Lakeman v. Burnham, 7 Gray, 437; Com. v. Bailey, 13 Allen, 
 541. 
 
 ^Moulton V. Libhey, 87 Me. 473; Gulf Pond Oyster Co. v. Baldwin, 43 Conn. 
 
 355; Paul v. Hazelton, 37 N. J. L. 106: Porter v. Shehan, 7 Gray, 435; 
 
 Fleet V. Hageman, 14 Wend. 43; McGveady v. Virginia, 94 U. S. 391, 24 
 
 L. ed. 248; Gould, Waters, 43. 
 ^Smith V. Maryland, 59 U. S. 18 How. 71, 15 L. ed. 269; Smith v. Levinus, 
 
 8 N. Y. 473; Laioton v. Steel, 119 N. Y. 226, 7 L. R. A. 134. 
 *State V. Roberts, 59 N. H. 356, 47 Am. Rep. 199. 
 ^Com. V. Manchester (Mass. Sept. 18, 1890) 9 L. R. A. 336. 
 *McCready v. Virginia, 94 U. S. 391, 34 L. ed. 348; Bennett v. Boggs, Baldw. 
 
 60; Corjield v. Coryell, 4 Wash. C. C. 371.
 
 496 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 entitled.' Each State owns the beds of tide-waters within its ju- 
 risdiction, subject to the paramount right of navigation. Fisheries 
 belong to the State." But as between nations the minimum limit 
 of the territorial jurisdiction of a nation over tide-waters is a ma- 
 rine league from its coast, and bays wholly within its territory not 
 exceeding two marine leagues in width at the mouth are within 
 this limit, and included in this territorial jurisdiction is the right 
 of control over fisheries, whether the fish be migratory, free-swim- 
 ming fish or fish attached to or imbedded in the soil.* The open 
 sea within this limit is of course subject to the common right of 
 navigation, and all governments for the purpose of self-protection 
 in time of war or for the prevention of frauds on its revenue or 
 the destruction of fisheries or seals exercise an authority beyond 
 this limit. No doubt a government will claim the ownership of 
 the soil in the bays and in the open sea adjacent to its coast to at 
 least this extent whenever there is any occasion to determine the 
 ownership.* 
 
 Section Ql.— Usage as Affecting Fishery Rights. 
 
 The usage of a nation, even in places public to ^li the world, in 
 the matter of fishing, as in other matters, mfisv control others ex- 
 ercising the right of fishing in such locality. Thus, where a cus- 
 tom had obtained universally in the southern whale fishery among 
 the Gallipagos Islands, that whoever struck a fish with the drogue 
 or drag should receive one half from the party who killed it, the 
 usage was enforced, although about fifteen years previously several 
 captains of ships employed among the Gallipagos had usually 
 agreed that the striker of a fish with the drogue should not be en- 
 titled to a share, the captain of the ship from which the whale 
 
 Worn. V. Vincent, 108 Mass. 441; Com. v. Tiffany, 119 Mass. 300; Cole v. East- 
 ham, 133 Mass. 65. 
 
 ^McCready v. Vmjinia, 94 U. S. 391, 24 L. ed. 248. 
 
 ^Com. V. Manchester ('SlvL'is. Sept. 18, 1890) 9 L. R. A. 236; Selden, Mare 
 Clausum, lib. 2, chap. 21; 16 Vin. Abr. 576. 
 
 ■*The authorities are collected in Gould on Waters, part 1, chap. 1, §§ 1-17, 
 and notes. See also Neili v. Buke of Devonshire, L. R. 8 App. Cas. 135; 
 Oammell v. Woods & Forests Comrs. 3 Macq. H. L. Cas. 419; Mowait v. 
 McFee, 5 Sup. Ct. (Can.) 66; Beg. v. Cuhitt, L. R. 22 Q. B. Div. 623: Stat. 
 46 & 47 Vict. chap. 22; Com. v. Manchester (Mass. Sept. 18, 1890) 9 L. R. 
 A. 236.
 
 Chap. XXIII.] USAGE AS AFFECTING FISHERY RIGHTS. 4117 
 
 was struck not being a party to the agreement. It 1)ec;\ine unnec- 
 cessarj to decide the question on appeal, but while Lord Chief 
 Justice Mansiield attached some importance to the change in prac- 
 tice, Chambre, e/i, held the custom absolutely good. His view was 
 this: " There must of necessit}^ be a custom in these things to gov- 
 ern the subjects of England, as well among themselves as in the 
 intercourse with the subjects of other countries. The usage of 
 Greenland is held to be obligatory not only as between. British 
 subjects, but as between them and all other nations. I remember 
 the first case upon that usage, which was tried before Lord Mans- 
 field, who was clear that every person was bound by it, and said 
 that were it not for such a custom there must be a sort of warfare 
 perpetually subsisting between the adventurers, and he held it 
 strongly binding, from the circumstance of it extending to differ- 
 ent nations. The same necessity must prevail in the south seas, 
 although the fishery has not been so long in use, in order to regulate 
 our intercourse with the French, Americans and others who resort 
 thither. A few persons may, by compact among themselves for a 
 particular reason, renounce any advantages, and subject themselves 
 to any disadvantages, that they please; and this would bind all those 
 who assented to it; but Luce (who claimed the share in the fish) 
 was no party to this compact." * An observance of this rule of 
 respect for local usage during certain seasons might render of easy 
 solution the right of taking seals in the waters of Behring Sti-ait. 
 In the Greenland fishery the more recent claim of usage is that 
 the whale continues the property of the first striker, while the 
 harpoon remains in him, and the line continues attached to it. 
 But if the harpoon is torn out and the line detached, still the fish 
 may be claimed from its captor, if he was entangled in the line, 
 and that continued in the control of the striker." A trespasser 
 who intrudes in the pursuit while the fish remains fast by the har- 
 poon and line will gain nothing by detaching the fish and captur- 
 ing it.' A toll of fish may sometimes be exacted for drawing fish 
 boats upon the beach, even by one not owning the cove.* 
 
 ^Fenninga v. Lord Orenville, 1 Taunt. 243. 
 ^Hogarth v. Jackson, Moody & M. 58, 2 Car. & P. 595. 
 ^Skinner v. Chapman, Moody & M. 59, n. 
 
 *Faimouth v. Penrose, 9 Dowl. & Ry. 452; Falmouth v. George, 5 Bing. 286. 
 32
 
 498 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 Section 62. — Fishery Rights Common to All or 
 Vested in Individuals. 
 
 Where one has the exclusive right of fishing and is presumably 
 the owner of the soil, though not necessarily so,' it is called a sev- 
 eral fishery." If he be the owner of the soil, his right is more 
 properly called that of territorial fishing, as his dominion is over 
 the territory of which the fishing is an incident.' The presump- 
 tion is against the existence of a several fishery in tide-waters and 
 this exclusive right must be sustained by evidence.* Clearing out 
 a fishing place in a river does not give an exclusive right of fishery.*' 
 
 One who has, as is said, a certain property in the fish, and ac- 
 quires by grant or prescription an exclusive right in fishing in pul)- 
 lic navigable waters, holds a free fishery.' Woolrych suggests 
 that a free fishery is no other than an unlimited common of fish- 
 ery.^ The right extends to all waters, whether public or private.* 
 A common of fishery and a common fishery are distinguisliable in 
 that the first is a right in common with certain others, in a partic- 
 ular stream on another's land,* and was given for the sustenance 
 of the families of tenants and limited thereby;'" and it may be ap- 
 pendant, appurtenant or in gross as other commonable rights;'* 
 and the latter, a common fishery, is a right in common with all 
 others in a common water, like the sea," Chancellor Kent says r 
 " The more easy and intelligible arrangement of the subject 
 
 ^Holford V. Bailey, 18 L. J. N. S. (Q. B.) 109. 
 
 ^Pollexfen v. Cmpin, 1 Vent. 133; Holford v. Bailey, 13 Q. B. 425, 444; Mal- 
 
 comson v. O'Dea, 10 H. L. (Jas. 593; Caswell v. Johnson, 58 Me. 164; Freary 
 
 V. Cooke, 14 Mass. 488; Trustees of Brookhaven v. Strong, 60 N. Y. 56; 
 
 Munson v. Baldwin, 7 Conn. 168; Skinner v. Rettrick, 73 N. C. 53; Gould, 
 
 Waters, 183. 
 3 Schultes, Aq. Rights, 87. 
 *FitzwaUer's Case, 1 Mod. 108; Crichton v. Gallery, Ir. R. 4 C. L. 508; Rogers 
 
 V. Jones, 1 Wend. 237. 
 ^Westfall V. Van Anker, 12 Johns. 425. 
 '3 Kent, Cora. 409; Child v. OreenMll, Cro. Car. 553; Smith v. Kemp, 2 
 
 Salk. 637; Alderman v. Hastings, 2 Sid. 8. 
 ■"Woolr. Waters, *136. 
 8Co. Litt. 123a, note. 
 
 ^Gent V. Abbott, 8 Taunt. 187, by Dallas, /. 
 >»3 Bl. Com. 35. 
 "Woolr. Waters, *129. 
 ^"^ Smith V. Kemp, 2 Salk. 637; Fitzwalter's Case, 1 Mod. 105; Benett v. Costar, 
 
 8 Taunt. 183; Gould, Waters, 183.
 
 Chap. XXIII.] OWNERSHIP OF FISHERY RIGHTS. 490 
 
 would seoin to be to divide the riglit of fisliing into a right com- 
 mon to all, and a right vested exclusively in one or a few individ- 
 uals." ' A public fishery does not give fishornien a right to draw 
 nets upon the sliore.'^ Prescription connected with some estate, 
 not a custom only, must be shown in England to justify fishing in 
 another's waters, in a navigal)le stream, not tidal.' Forty-five 
 years' use of particular instrumentalities in catching fish is not 
 sufficient to establish a conclusive legal presumption of their use 
 from time immemorial.* Ownership of a strip of the shore of a 
 ■pond gives no right to fish in the pond, as against the owner of 
 the land under the water.' As to private streams, or ponds cre- 
 ated therein, no right exists to fish in them without license of the 
 owner, any more than to hunt on his lands.* An action for use 
 and occupation will lie for a fishing.' A right of fishing may 
 doubtless be acquired by the public by prescription, as a several 
 fishery may be derived.' There seems no good reason why a dedi- 
 cation may not be presumed from the continued exercise by the 
 public of this right, as in case of other easements,* Indeed, there 
 are but two methods of establishing the fishery — by right and by 
 dedication, A claim founded upon an abandonment of a prescrip- 
 tive right, as when a prescriptive right in a public river is ne- 
 glected, is in fact a resumption of the public rights.*' Everyone, 
 not only by common law but by the law of nations, may fish with 
 lawful nets in the sea, for, as Grotius states it, the sea is as free 
 as the air." Where the plaintiff had a shoal of mackerel in a 
 place so that there was only a small opening, through which the 
 witness stated they could not escape, this was held not such pos- 
 
 > 3 Kent, Com. 411. 
 
 2 WeslfuU V. Van Anker, 13 Johns. 435. 
 
 ^Pearce v. Scotcher, L. R. 9 Q. B. Div. 163. 
 
 *Holford V. George, L. R. 3 Q. B. 639. 
 
 ^Baylor v. Decker, 133 Pa. 168. 
 
 ^BurrougJisv.Whitman,f)^M.\Q.\i.21%; Greye's Caxe, Ow. 20. Peo 21 Hen. 
 VII., 36; 10 H. VII., 6, 30; Carter v. Murcof, 4 Burr. 21, 62; Woolever v. 
 Steimrt, 36 Ohio St. 146; State v. Glen, 7 Jones, L. 321; BriaUA v. Ousa- 
 tonic Water Co. 42 Conn. 403; Boatwright v. Bookman, Rice, L. 447. 
 
 ''Eolford V. Pritchard, 3 Exch. 793. 
 
 ^ Gould V. James, 6 Cow. 369. 
 
 "Woolr. Waters, *129. 
 
 ^'^Rogers v. Allen, 1 Camp. 313. 
 
 " Ward V. Greswell, Willes, 255.
 
 500 IMPOSED DUTIES, PERSONAL. [Part 11. 
 
 session as prevented the defendant from taking tliem, no special 
 custom of the particular fishery being shown.' Private fishery is 
 by grant, prescription or custom, and sometimes a statute regulates 
 the fishing in water over which the State takes control, as canals, 
 etc.'' Fishing rights are enjoyed eitlier in public or private stream's 
 In public waters the right is by grant or prescription. A grant of 
 exclusive fishery, except as to what are called royal fish, as whales 
 and sturgeons, in an arm of the sea, must be as old as the reign of 
 Elenry the Second.' Every sort of fishery may be claimed by 
 grant, prescription or custom, but a claim that all the inhabitants 
 of a locality had, as such, a right to fish in a particular place was 
 held to be founded on a bad custom.* But when severed from 
 the soil, the right must be created by deed. As, where a clahn to 
 fish in the River Dart was founded on a simple writing, it was 
 held that, as it purported to grant the fishery only, and was not 
 under seal, it could not operate as a demise for years of that which 
 lies in grant." But one could justify as an agent of the owner 
 under a parol license. When the lessor has a sole fishery, a grant 
 of the water, reserving the fishei'y, is good as a reservation.* So 
 a grant of a common of fishery is good, although there be a reser- 
 vation of a portion of the water to a special use.' The ouster of 
 a corporation, without its dissolution, after its restoration to its 
 fishery rights by reincorporation, will not be held as having passed 
 the ancient fishery to the Crown, nor will a written grant by it to 
 certain dredgermen, to dredge for oysters during the season, oper- 
 ate as a demise so as to take away the possession from the corpo- 
 ration.* Where the plaintiff and defendant were separately pos- 
 sessed of four and a half acres of land, which under an Act of 
 Parliament was converted into a reservoir, there being a regulation 
 in favor of the plaintiff and defendant as to taking the fish in the 
 
 1 Young v. Eichins, 6 Q. B. 606. 
 « Woolr. Waters, *130. 
 
 *Co. Litt. 114; Warren v. Mathews, 6 Mod. 73; Eogersv. Allen, 1 Camp. 313, 
 
 note a; 3 BI. Com. 39. 
 *Lloi/d V. Jones, 6 0. B. 81. 
 '^Somerset v. Fogwell, 5 Bara. & C. 875, 1 Djwl. & Ry. 347. See Bird v. Hig- 
 
 ginson, 6 Ad. & El. 824. 
 ^Paget v. Milles, 3 Doug. 43. 
 ■I 34 Ass. pi. 11. 
 ^Colchester v. Brooke, 7 Q. B. 339.
 
 Chap. XXIII.] PRIVATE FISHERIES. 501 
 
 reservoir that the owners of the land on wliicli it stood might 
 let the water out once in seven years for the purpose of taking 
 the tish, the time being limited to the month of Xoveniber, it 
 was contended that the owners were tenants in common of the 
 septennial fishery thns created, but the interest was held to be also 
 several, and each party was therefore entitled to have the fish left 
 on his own land when the reservoir was drained. It was urged 
 that the fish would go along with the water as it ebbed and be 
 finally stranded on the land lowest down the outlet, and thus no 
 reasonable division could be made, unless there was a tenancy in 
 common. But the ruling was, that it was a general right of fish- 
 ery, and each party must take his chance of the fish left aground.' 
 
 Section (S2>.— Private Fisheries. 
 
 In this country, while the ebb and flow of the tide do not deter- 
 mine the navigability of the stream, they have been held to deter- 
 mine the right of fishing therein,and therefore, although a stream be 
 navigable for boats, yet if it be not subject to tide-water, it is held 
 private so far as fishing rights are involved, the ownership of 
 the land under the water giving, where it exists, exclusive rights 
 to the fishing.'' It is said by Sir Matthew Hale in De Jure Maris: 
 '•Fresh rivers of what kind soever do, of common right, belong to 
 the owners of the soil adjacent, so that4he owners of the one side 
 have, of common right, the property of the soil, and consequently 
 the right of fishing, usque filunb aquce; and the owners of the other 
 side, the right of soil or ownersliip and fishing unto the filum 
 aqucB on their side. And if a man be the owner of the land of 
 both sides, in common presumption, he is the owner of the whole 
 river, and hath the right of fishing according to the extent of his 
 land in length. With this agrees the common experience." ' "But 
 ^Snape v. Dobbs, 1 Bing. 202, 8 Moore. 23. 
 
 ^Hooker v. Cummim, 20 Johns. 90, 100; People v. Plait, 17 Johns. 195; 
 Palmer v. Mulligan, 3 Caines, 307, 315; Adams v. Pease, 2 Conn 481 ' 
 483, 484; People v. Piatt, 17 Johns. 195, 209, 210: Brown v. Kennedy, 5 
 Har. & J. 195; Trustees of Brookluiven -v. Strong, 60 N.Y. 56; Beckma'n'v 
 Kreamer, 43 111. 447; Inland Fisheries Comrs. v. Holvoke W. P Oo 104 
 Mass. 446. 
 
 •See Hooker v. Cummins, 20 Johns. 90, 99-101 ; Arnold v. Mnnday, 6 N. J L 
 174; Freary v. Cooke, 14 i\Iass. 488; Ingram v. Treadgill, 3 Dev. L. 59- 
 Com. V. Chapin, 5 Pick. 199; Lewis v. Keeling, 1 Joiies, L. 299; Com v' 
 Vincent, 108 Mass. 441; Cobb v. Davenport, 32 N. J. L. 399; Claremont v 
 Carlton. 2 N. H. 369, 371; Hayes v. Boicman, 1 Rand. 417, 420
 
 502 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 special usage may alter that common presumption; for one man 
 may have the river, and others the soil adjacent; or one man may 
 have the river, and another the free or several fishing in that river. 
 Though fresh rivers are in point of property, as before, 
 prima facie of a private interest; yet as well fresh rivers as salt, 
 or such as flow and reflow, may be under these two servitudes, or 
 affected by them, viz.: one of prerogative, belonging to the King, 
 and anotlier of public interest, or belonging to the people in gen- 
 eral." The prerogative rights of the King are recognized "in 
 many fresh rivers, even where the sea dotli not flow or reflow, as 
 well as in salt or arms of the sea." These rights are: (1) That no 
 man may set up a common ferry for all passengers, without a pre- 
 scription time out of mind or a charter from the King. (2) An 
 interest of pleasure or recreation, not applicable in this country 
 and obsolete in England, as Hale says. (3) An interest of juris- 
 diction in regard to common nuisances in or by rivers, as well for 
 fresh rivers as for salt. This jurisdiction is confined to such 
 streams as are a common passage, not only for ships and greater 
 vessels, but also for smaller, as barges or boats, " to reform the 
 obstructions or aimoyances that are therein to such common pas- 
 sage." So it is said, " there be some streams or rivers that are 
 private, not only in property or ownership, but also in use, as little 
 streams and rivers that are not a common passage for the King's 
 people. Again, there be other rivers, as well fresh as salt, that 
 are of common or public use, for carriage of l)oats and lighters. 
 And these, whether they are fi-esh, whether they flow and reflow 
 or not, are prima facie imbliGi juris^ common highways for man 
 or goods, or both, from one inland town to another." * 
 
 In Hooker v. Cummings, 20 Johns. 100, Spencer, Ch. -/., reaches 
 the conclusion that " the common law of England considers a river, 
 in which the tide ebbs and flows, an arm of the sea, and as navi- 
 gable, and devoted to the public use, for all purposes, as well for 
 navigation as for fishing. It also considers other rivers, in which 
 the tide does not ebb and flow, as navigable, but not so far belong- 
 ing to the public as to devest the owners of the adjacent banks of 
 their exclusive rights to the fisheries therein." But in a later 
 case it is said "that if the term 'navigable water' as used in 
 
 ^ See Baldwin v. Ooodyear, 6 Cow. 536, note a, 537-539.
 
 Chap. XXIII.] RESTRICTIONS UPON FISHING AND HUNTING. 503 
 
 England was ever there for any purpose wholly restricted to the 
 waters which are affected by tlie ebb and flow of the tide, it has 
 by common consent a more enlarged signification in this country, 
 and is here held to mean all such waters as are actuall}' navigable, 
 whether fresh or salt. TTlien it is considered that the riglits and 
 interests of the public, such as fishing, ferrying and transportation, 
 are preserved in all navigable waters by the inherent and inalien- 
 able attributes of the sovereign, it would seem to follow that the 
 controversies which have arisen over the nominal ownership of the 
 soil under such waters have been magnified beyond the real inter- 
 ests involved.'" It issaid that fishing in open waters remote from 
 tlie land is a maritime business like navigation, and may be carried 
 on by any suitable machinery, and even with stakes wherever it 
 •does not interfere with navigation and is not forbidden by law. 
 And in narrow streams fishing from boats with lines cannot ])e 
 complained of by riparian owners, if the persons fishing have the 
 right to be there. Fish are,/*ercB naturae, and can be taken by any- 
 one who has the right to be on the premises." 
 
 ^Section 64. — Restriotions upon Fishing and Hunt- 
 ing Pdghts. 
 
 "While the questions of fishing and hunting are, in principle, 
 somewhat analogous, yet they have always in England been treated 
 as separate subjects of legislation and regulation. The Forest and 
 Game Laws of England have always been treated under a separate 
 code, distinguished for its inhibition of the common rights of the 
 subject, and for the cruel punishments inflicted for trivial offenses.' 
 The common law, which recognized the right of hunting and 
 of property in wild animals to be a royal prerogative, and to 
 vest in the King, has no existence in this country. Here the sov- 
 ereign power is in the people, and the principle, founded upon 
 reason and justice, obtains that, by the law of nature, every man, 
 of whatever rank or station, has an equal right of taking for his 
 own use all creatures fit for food that are wild by nature, so lono- 
 as he does no injury to another's rights. Laws liave been passed 
 
 ^Sniith V. Rochester, 92 N. Y. 463, 479, 480. 
 
 ^Lincoln v. Davis, 53 Mich. 375. 
 
 ^3 Bl. Com. 411 etseq.; Com. Dig. Justices of the Peace, 43, 45-49.
 
 504 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 to protect game during certain seasons, with a view to their pres- 
 ervation, but none denying the right of any person to capture or 
 kill game in the allotted season. 
 
 This j'ight is restricted only as to place. Since every person has 
 the riofht of exclusive dominion as to the lawful use of the soil 
 owned by him, no man can hunt or sport upon another's land, but 
 by consent of the owner. The owner of lands has the exclusive 
 right of hunting and sporting upon his own soil. "Whatever may 
 be the view entertained when the land belongs to the United States 
 or to the State, there can be no question when the land passes to 
 the hands of private owners. 
 
 The defendant in Sterling v. Jackson, 69 Mich. 488, 14 West. 
 Rep 229, claimed that he had the right to shoot wildfowl from 
 his boat, because, as the waters were navigable where he was, he 
 had a right to be there; that there being no property in wildfowl 
 until captured, if he committed no trespass in being where he 
 was, no action would lie against him for being there and shooting 
 the wild duck. 
 
 It was admitted by the court that there was a plausibility in the 
 position, which, considered in the abstract, was quite forcible, and, 
 if applied to waters where there was no private ownership of the 
 soil thereunder, would be unanswerable. But, it was said, so far 
 as the plaintiff was concerned, defendant had no right to be where 
 he was except for the purpose of pursuing the implied license held 
 out to the public of navigating the waters over his land. So long 
 as that license continued, he could navigate the water with his ves- 
 sel, and do all things incident to such navigation. He could seek 
 the shelter of the bay in a storm and cast his anchor therein. But 
 it was there decided that he had no right to construct a "hide," or 
 to anchor his decoys for the purpose of attracting ducks within 
 reach of his shotgun. Such acts, it was said, are not incident to 
 navigation, and in doing them defendant was not exercising the 
 implied license to navigate the waters of the bay, but they were 
 an abuse of such license. The same claim that' the defendant was 
 where he had a right to be when he did the shooting was made in 
 the case of Carrington v. Taylor, 11 East, 571. That was an ac- 
 tion on the case. The plaintiff was possessed of a certain place 
 prepared with suitable and proper conveniences for decoying and.
 
 Chap. XXIII.] RESTRICTIONS UPON FISHING AND HUNTING. 505 
 
 catching wildfowl, commonly called a decoy, and had been accus- 
 tomed to catch wild ducks, etc., in his decoy, which was situated 
 on one of the salt creeks called the Bhickwater River, where the 
 tide ebbed and flowed. The defendant sought his livelihood in 
 part by shooting wildfowl from his boat on the water, for which 
 boat, with small arms, he had a license. The only proof of the 
 disturbance by the defendant was that he, being out in his boat 
 shooting wildfowl in a part of the open creek, first tired his fowl- 
 ing-piece within about a quarter of a mile of the plaintiff's decoy, 
 when '200 or 300 wildfowl came out; and afterwards approached 
 nearer, and fired again at a wildfowl upon the wing at the dis- 
 tance of about 200 yards and upwards from the decoy pond, when 
 he killed several widgeons, and, immediately upon the noise of the 
 gun, 400 or 500 wildfowl took flight from the pond; but it did 
 not appear that he fired into the decoy. The learned judge left 
 this as evidence to the jury of a willful disturl)ance of the plain- 
 tiff's decoy, by the defendant, for which this action would lie. 
 The jury found a verdict for plaintiff. On a motion to set this 
 verdict aside as being against law and evidence, counsel for defend- 
 ant claimed that the defendant, having a right to shoot at the wild- 
 fowl in the place where he was, which was an (jpen creek or arm 
 of the sea where the tide flowed and reflowed, and not having sone 
 upon the plaintifi's land, nor fired into his decoy at the birds there, 
 the verdict should be set aside. The court, however, said that it 
 saw no ground for disturbing the verdict in point of law, and that 
 the evidence was proper to be left to the jury. 
 
 Another case is that of Keehle v. Hicheringill, 11 Mod. 74, 130 
 3 Salk. 9, Holt, 14, 17, 19. It is also reported, from Lord Holt's 
 manuscript, in 11 East, 574. The action was trespass on the case 
 for disturbing plaintiff's decoy. The defendant was lord of a 
 manor, and had a decoy; and the plaintiff had also made a decov 
 upon his own ground, which was next adjoining to defendant's 
 ground, and pretty near also to defendant's decoy, and therein the 
 plaintiff had decoy and other ducks, whereof he made considerable 
 profit. It appears, from the report of the case in Holt's Reports, 
 at page 17, that the defendant was upon his own land when he 
 shot off his gun. The declaration alleged that defendant resorted 
 to the head of the defendant's pond, and there discharged six guns
 
 506 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 laden with gunpowder, and, with the noise and stench, drove away 
 the wildfowl then being in defendant's pond, with design to 
 damnify the plaintiff and to frighten his wildfowl from his decoy. 
 It was held the action would lie. 
 
 The same principle is maintained by the Supreme Court of Ohio 
 in State v. Shannon^ 36 Ohio St. 423. The court declared the 
 j'ight of private ownership in the bed of the Sandusky River to 
 be in the riparian proprietor. In this case Shannon was arrested 
 for violation of a Statute which made it penal for any person who, 
 liaving received written or verbal notice from any owner of in- 
 closed and improved lands, or any lands the boundaries of which 
 are defined by stakes, posts, watercourses or marked trees, not to 
 hunt thereon, shoot at, kill or pursue with such intent on such 
 lands any of the birds or game mentioned in the Act concerning 
 game, or upon any land upon which a notice is posted in a con- 
 spicuous place: "No shooting or hunting allowed on these prem- 
 ises." The com.plaint charged Shannon with shooting and killing 
 wild ducks on the land of Tindall, situate in said county, etc. 
 Tindall was the owner of land bounded on one side by the San- 
 dusky River, — a navigable stream, — and Shannon, on the lOth of 
 October, 1877, when the killing of wild duck was not prohibited 
 by statute, was in a skiff on Sandusky River, between the middle 
 thereof and the shore owned by Tindall, from which position he 
 shot and killed wild ducks swimming in and flying over the water 
 between said shore and the middle of the river. Boards inscribed 
 in legible English characters, " No shooting or hunting allowed on 
 these premises," were set up in conspicuous places on the shore, 
 and Shannon had been notified by Tindall not to shoot or hunt on 
 his lands. The position occupied by Shannon on the river was 
 within the limits of navigation as used by boats and other water- 
 craft engaged in commerce, and the public generally had been ac- 
 -customed to fish and kill wild ducks in the same location upon the 
 river. Mcllvaine, Ch. J., in delivering the opinion, said: " It is 
 claimed, however, that this Statute was not intended to protect 
 hinds covered by the water of a navigable river. A majority of 
 the court can see no grounds upon which lands covered by navi- 
 gal)le streams should be excluded. They are as much the subject 
 ■of private owuersliip as unnavigable streams. There is no distinc-
 
 «Chap. XXIIL] RESTRICTIONS UPON FISHING AND HUNTING. 507 
 
 tion between tliem made by the terms of the Statute. True, navi- 
 gable streams, in this State, are declared to be public highways; 
 but the right to use a public highway is not abridged by protecting 
 the owner of the fee in the exclusive right of killing game therein. 
 Travel and commerce are not thereby hindered. And as the power 
 of the Legishiture to protect game, or tlie exclusive right of the 
 owner of land to kill the same on his own premises, is as ample 
 over land covered by water, whether navigable or unnavigable, as 
 it is over dry land; and, as there is no attempt to distinguish be- 
 tween them in this Statute, — we must hold that all alike are in the 
 protection of this Statute." In each of these cases, it was said by 
 the court in Sterling v. Jaclcson, 69 Mich. 488, 14 West. Eep. 2-29, 
 the defendant " was where he had a right to be " at the time he 
 •committed the grievance complained of; nevertheless this fact did 
 not justify him in doing an act the direct consequence of which 
 was to injure the owner of the land for his own benefit. It does 
 not follow that, because a person is where he has a right to be, he 
 cannot be held liable in trespass. A person has the right to drive 
 his cattle along the public highway, but he has no right to depas- 
 ture the grass with his cattle, in the highway adjoining the land 
 of another person. 
 
 Also, a person has the right to travel along the public high w^ay, 
 but this gives him no right to dig a pit, or remove the soil, or in- 
 cumber it in front of lands belonging to another. In Sterling v. 
 Jackson it was accordingly held that the defendant had tlie riofht 
 of using the waters of the bay for the purpose of a public high- 
 way in the navigation of his boat over it; but he had no right to 
 interfere with the plaintiff's use thereof for hunting, which be- 
 longed to him as the owner of the soil. The public had a right to 
 Tise it as a public highway; but everj^ other beneficial use and en- 
 joyment belonged to the owner of the soil. As owner of the fee 
 of the soil under the Avater he is entitled to such exclusive rijrht. 
 
 There were two opinions dissenting from the judgment of the 
 three concurring judges, and as these present the opposing doctrine 
 in the strongest light, and as most according with republican ideas, 
 they will be given in substance. In the opinion by Morse, J., he as- 
 sumes that it must be considered as well settled that no man has 
 any property in w'ildfowl until he has killed or captured the same.
 
 508 IMPOSED DUTIES, PEKSONAL. [Part li- 
 
 lt makes no difference whose land thej are flying over, or upon 
 whose soil or water they are resting or feeding. Such passing 
 over or stopping upon the premises gives the owner of the same 
 no more property in them than if they were on or over the lands 
 of another. If so, the land owner could kill and destroy wild ani- 
 mals or birds without any reference to, or regard for, our Game 
 Laws, if they were upon or flying over his premises at any time, as- 
 the law could not well, under our State Constitutions, limit him 
 thus in the use of his property. 
 
 If any person is rightfully upon the premises of another, then,, 
 it is insisted, he has the same right, under the law, to kill and cap- 
 ture the game thereon, and to liold the same as his property, after 
 the killing or capture, as the owner himself would have. 
 
 The question then is, Has a man lawfully upon a navigable- 
 stream, a public higliNvay or any body of navigable water, a right. 
 to kill wild game upon such water, or flying over the same ? 
 
 Section 65. — Game and Forestry Laics. 
 
 "We can borrow no light in this discussion from the English- 
 Game and Forestry Laws, which are not a part of our common 
 law, and which are repugnant and hostile to the theory of our in- 
 stitutions. The wild game and lish abounding in our woods and 
 waters have never been the property of the general government 
 or of the State, in the sense that they were held the property of 
 the Crown in England. No man here is granted special permission 
 by the national or state government to kill game or catch lish ex- 
 clusively at certain times or in certain places. Our Game and Fish 
 Laws are general, and apply to and govern the whole people. Tim 
 fish of our waters, and the game of our woods, and the wild birds 
 of the air, belong to the People, and not to the Crown, and should 
 always, when they can be captured or killed without detriment to- 
 private rights, be preserved to the people. 
 
 Game and Forestry Laws are not in harmony with the American 
 idea, and are of late origin in the history of our country. Such 
 laws can only be supported and justified on the ground that the 
 game is fast disappearing and ought to and must be protected and 
 preserved for the use and benefit of the people, — for the general
 
 Chap. XXIII.] GAME AXD FORESTRY LAWS. 509 
 
 public, and not for a specified few. Our Fish and Game Laws 
 have not been passed for the express benefit of chibs of weahhy 
 sportsmen, who can afford to buy up or lease all the land alon>;' 
 the navigable streams and lakes of a State, and thus shut out 
 the poor man who loves the rod or gun as well as they do, and 
 who, in the spirit of our institutions, has a common right watli 
 them in the " fowl of the air and the fish of the sea." 
 
 Large expenditures of money drawn by taxation from all the 
 people, rich and poor, — the poor man as usual paying at least his 
 full proportionate share, if not more, — are being made annually to 
 stock the public watei'S with brook trout and otlier food fishes. 
 The expenses of game wardens and their deputies, in maintaining 
 and enforcing the Game Laws, are borne by all under the usual 
 methods of taxation. 
 
 The Pilgrim fathers, fleeing to the new world from the tyran- 
 nies of a despotic era in the history of the mother country, brought 
 with them not only religious ideas, but many other notions as to 
 the rights of the common people, not then pi*evalent or counte- 
 nanced in England. And the old Colon}' of Massachusetts Bay 
 •early adopted laws looking toward the establishment of a common 
 right in the people to the fish and wild game, then abounding in 
 the waters and woods of the new world. 
 
 In 1641 or 1647 it was enacted: "Every inhabitant who is a 
 householder shall have free fishing and fowling in any great ponds, 
 bays, coves and rivers, so far as the sea ebbs and flows, within the 
 precincts of the town where they dwell, unless the freemen of the 
 town or the general court have otherwise appropriated them, pro- 
 vided that no town shall ajjpropriate to any particular person or 
 persons any great pond containing more than ten acres of land, and 
 that no man shall come upon another's property without their 
 leave, otherwise than is hereafter expressed." 
 
 Another and later section in the same Act provided : "And 
 for great ponds lying in common, though within the bounds of 
 some town, it shall be free for any man to fish and fowl there, and 
 may pass and repass on foot through any man's property for tliat 
 end, so that they trample not upon any man's corn or meadow," 
 
 Chief Justice Shaw says " that the great purpose of this Act was 
 to declare a great principle of public right, to abolish the Forest
 
 510 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 Laws, the Game Laws and the laws designed to secure several and 
 exchisive iisheries, and to make them all free."' 
 
 In Maine the right to fish in navigable waters, even over private- 
 soil, was secured to the public, and it is there held that a mere 
 grant, by the State, of land covered by navigable water, confers 
 upon the grantee no greater rights than he would have had had 
 he owned it without such direct grant and as a riparian owner.* 
 
 The principle of free fishing and fowling has passed into the 
 Organic Law of Vermont, where shooting on uninclosed lands and 
 fishing in beatable waters are declared free to the public* 
 
 The common law of England, as far as navigable waters were- 
 concerned, recognizing the property of tlie fish therein to be in 
 the Crown, gave no right of fishing to the owners of the shore su- 
 perior to that of the public, except bj the granting of special 
 rights and privileges by the King. But navigable rivers were lim- 
 ited, in the meaning of the law, to streams having an ebb and flow 
 of the tide, and their navigability extended no farther than the- 
 tides went. All persons had a common and general right of fish- 
 ing in the sea, and in all bays, coves, branches and arms of the- 
 sea, and in all other navigable or tide waters. This right covered 
 the gathering of shellfish on the bottom, as well as the taking of 
 swimming or floating fish. But in streams or bodies of water 
 where the tides did not ebb or flow, under the common law, the- 
 riparian proprietor, if he owned the land on both sides of the 
 stream, conld prevent anyone coming upon his land and taking 
 fish out of the stream, and the same rule was held to extend, as- 
 far as his ownership of the soil went, to the thread or centre of the 
 stream. Within such limits his right of fishing was sole and ex- 
 clusive, unless restricted by some local law or well-established usage 
 or custom of the place. 
 
 It will thus be seen that the common law gave the riparian 
 owner the right of exclusive fishing upon streams running through 
 or along the line of his lands, because, such streams not being navi- 
 gable, no person had any right to be upon them, within his prem- 
 
 'See Com. v. Alger, 7 Cash. 53-68; Weston v. Sampson, 8 Cush. 347; West 
 
 Rorbury v. Stoddard, 7 Allen, 158. 
 ^Parker v. Cutler Mill D im Co. 20 Me. 353; Moulton v. Libbey, 37 Me, 472;. 
 
 Parsons v. Clark, 76 Me. 478. 
 «Vt. Const. § 40.
 
 Chap. XXIII.] GAME AND FORESTRY LAWS. 511 
 
 ises, or opposite them upon his side of the stream, witliout his 
 consent or permission, any more than they would have the right 
 to be upon his lands without such consent. 
 
 But the great Korthwest is governed in this respect by the Or- 
 dinance of 17S7, which provided that " the navigable waters lead- 
 ing into the Mississippi and the St. Lawrence, and the carrying 
 places between the same, shall be common highways, and forever 
 free, as well to the inhabitants of the said territory as to the citi- 
 zens of the United States and those of any other States that may 
 be admitted into the confederacy, without any tax, impost or duty 
 therefor." This ordinance applies not only to the great lakes, but 
 to all the streams discharging their waters into the lakes or into 
 the Mississippi and its tributaries, upon which had been floated 
 prior to the adoption of the ordinance the commercial products of 
 the country, not only in vessels, but in batteaux and canoes. It 
 must also be remembered that this commerce then consisted mainly 
 of fish and the skins of wild animals. It was an ordinance saving 
 to the hunter an _1 the fisherman the right to navigate these waters, 
 free of charge, upon his way to market the products of the chase; 
 and it needs no great stretch of construction to hold that it also 
 preserved to him forever the right to hunt and fish upon them. 
 
 It follows, therefore, from the clear language and intent of this 
 ordinance, that the navigability of the waters of the Great Lakes and 
 of navigable streams does not depend upon any tidal ebb and 
 flow. No such ebb and flow exists in the whole northwest ter- 
 ritory. 
 
 There are decisions, in great number, already cited, which 
 clearly state the conditions which constitute navigability in tiie 
 streams and lakes of the States. If the common-law doctrine pre- 
 vailed, there w^ould be no navigable water in the Northwest, or 
 bordering upon, although parts of it are nearly surrounded by 
 great inland seas, but seas without tides. 
 
 If the right of the public to fish in any body of water depends 
 upon its navigability, as it seems to under the common law, then, 
 if the navigability is extended, as it is here, to the great lakes and 
 other lakes and streams in the States, which are nontidal waters, 
 in reason, the public right to fish therein ought to follow 
 such navigability as extended by our laws. And, disregarding the
 
 512 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 <jrame and Forestry Laws of the old country, which have no place 
 here, and do not belonoj to our common law, the right of fowling 
 must be determined upon the same principles as the right of 
 fishing. 
 
 It has been held in Ohio that the right of fishing in Lake Erie 
 and its bays is not limited to the proprietors of its shores, and that 
 such right is as public as if their waters were subject to the ebb 
 and flow of the tide.* 
 
 In a later case it was further held in Ohio that a landlocked bay 
 of Lake Erie, connected by an opening with the lake, might be 
 susceptible of private ownership by grant; but, the waters of the 
 same being navigable, such ownership must be held subject to the 
 public rights of navigation and fishing; and that no mere grant of 
 the land covered by such waters destroys this public right. " The 
 private grantee of the land cannot do anything that will interfere 
 with the channel, or hamper the passage of water-craft through it. 
 But he may, without the limits of the channel, erect fishing-houses 
 or such other structures as his means and the depth of the water 
 will permit; he may convert shallow portions into cranberry patches; 
 he may fill up other parts and make solid ground. Although such 
 action by him may lessen the water surface available for the fish- 
 ing boats, the fishermen cannot complain. Such public right to 
 fish always yields to any permanent improvement by the owner of 
 the land on which the water rests." * 
 
 It seems that the right of shooting wildfowl upon the water 
 rests upon the same great principle as the right of taking fish 
 therein. Both fish and waterfowl are the property of him who 
 kills or captures them. Neither of them have any relation to or 
 connection with the soil beneath the water, and are in no sense, 
 and by no sophistry of reason, even a part of the land, and do not 
 make their home upon it save as they swim in or upon the waters 
 that cover it. They both belong to the water rather than the land. 
 
 ^Sloan V. Biemiller, 34 Ohio St. 492. See also as to the other great inland lakes 
 of the United States, State v. Oilmanton, 9 N. H. 461; Slate v. Franklin 
 Falls Go. 49 N. H. 250; Fletcher v. Phelps, 28 Vt. 257; Austin v. Rutland 
 R. Co. 45 Vt. 215: Champlain & St. L. R. Co. v. Valentine, 19 Barb. 485; 
 Ledyard v. Ten Eyck, 36 Barb. 103; People v. Gutchess, 48 Barb. 656. See 
 also West Roxbury v. Stoddard, 7 Allen, 167; Canal Comrs. v. People, 5 
 Wend. 423-451. 
 
 ^Hogg V. Beerman, 41 Ohio St. 81-98.
 
 I 
 
 Chap. XXIIL] GAME AND FORESTRY LAWS. 513 
 
 Both are used largely for food, and are great sources of sustenta- 
 tion to mankind; and the common right and pri\-ilege of all to 
 take them upon and in the public waters should never be denied 
 in a free country, or farmed out as a special favor to a fortunate 
 few. 
 
 In all the cases in the United States where it has been decided 
 that the exclusive right of fishing belonged to the owners of the 
 banks of the lakes or streams, it has been confined to such hikes 
 and streams as were not navigable in fact, or M'holly inclosed with- 
 in the lands of one proprietor, or the courts have made the same 
 distinction that prevails in England in applying the principles 
 there laid down as to nontidal waters, without taking notice that 
 a navigable stream here is not confined to one having an ebb and 
 flow of the tide, but to any one that is navigable in fact. As be- 
 fore said, by the common law of England, fishing is free in all 
 navigable waters. Applying this rule of the common law prop- 
 erly to all our navigable streams, discarding the question of tide- 
 waters, wliich cannot prevail here, the right of the public to fish 
 must be, and ought to be, free in all our streams and lakes that are 
 navigable in fact and declared navigable under our laws. 
 
 The ownership of such soil, it is said, gives no propert}- to the 
 landed proprietor either in the fish or wildfowl. They are not 
 like the rocks in the bottom of the stream, or the ice that forms 
 upon its surface. They are wild things in which no man has prop- 
 erty while they are alive and untamed. And there is no case hold- 
 ing that the great inland lakes of this country are not free to all 
 in fishing and fowling. The principles governing non-tidal waters 
 in England are not applied to them, and it is claimed no sound 
 reason exists why there should be any distinction made in this re- 
 spect between these lakes and other navigal)le waters.* 
 
 In some of the decisions the right of the riparian owner seems 
 to be confined to the use of nets and seines in connection with the 
 lands possessed by him.* 
 
 'An examination of the following cases will, it is said, show the basis of the 
 rulings to be as above stated: Hooker v. C'ummings, 20 .Johns. 90; Waters 
 V. Lilley, 4 Pick. 145; Com. v. Chapin, 5 Pick. 199; McFarlin v. Easex 
 County, 10 Oush. 304; Beckinan v. Kreamer, 43 111. 447; Adams v. Peese, 
 2 Conn. 481; Smith v. Miller, 5 Mason, 191. 
 
 * Washington Ice Co. v. Shortall, 101 III. 46, citing Ang. Waters, § 67. 
 
 33
 
 514 IMPOSED DUTIES, PERSONAL. [Part II, 
 
 No decision is known in the IJuited States that prohibits one 
 lawfully upon the water, as in transit upon a navigable river, from 
 taking fish therein with hook and line, and the majority of the- 
 members of the Supreme Court of Michigan, as it was then con- 
 stituted, seem to have settled the doctrine in that State that such 
 fishing cannot be complained of by riparian owners, in Lincoln w 
 Davis, 53 Mich. 391. It may also be stated in this connection 
 that the right to fisheries in the Susquehanna, Delaware and other 
 large rivers of Pennsylvania, though the tide does not ebb and 
 flow in them, is vested in the State and open to all,' And in 
 North and South Carolina fishing is held free and common to all 
 in the navigable fresh-water streams of those States." 
 
 The right to take fish with hook and line in navigable waters^ 
 must necessarily carry with it the right to stop and anchor one's, 
 boat, and to stay in one place for shorter or longer periods, as the 
 occasion requires. 
 
 If the riparian proprietor owns the soil in the bed of the stream,. 
 yet, nevertheless, such anchorage is no damage to him unless he 
 owns also the fish in the river or has the exclusive right of taking 
 them therein. There is no injury to his property by such anchor- 
 age, and there can be no claim for damages without injury. And 
 it would seem that the principle governing and controlling the 
 right to fish with hook and line must also govern and control the 
 right to shoot wild ducks. 
 
 Under the well-settled law of Michigan, the proprietors of land 
 upon the banks of a navigable stream, like the Grand Kiver, own 
 the bed of the stream to the centre. One has, however, the right 
 to pass up and down that stream in a rowboat, and no landed pro- 
 prietor of its banks, and no association of sportsmen, who may 
 have leased for several miles the lands upon both sides for shoot- 
 ing or fishing purposes, can prevent his doing so. 
 
 A traveler for pleasure has as much right upon navigable water 
 as a traveler upon business. The Grand River is a public com- 
 mon highway, upon which are floated annually large amounts of logs 
 
 ^Carson v. Blazer, 2 Binn. 475; Shrunk v. Schuylkill Nav. Go. 14 Serg. & R. 
 
 71 ; Tinicum Fishing Co. v. Carter, 51 Pa. 21. 
 ^Cales V. Wadlington, 1 McCord, L. 580; Collins v. Benbury, 3 Ired. L. 277, 
 
 5 Ired. L. 118; WiUon v. Forbes, 2 Dev. L. 30; Boatwright v. Bookman, Rice, 
 
 L. 447; Fagan v. Armistead, 11 Ired. L. 433.
 
 Chap. XXIII.] GAME AND FORESTRY LAWS. 515 
 
 and lumber, and one with no business venture upon its bosom has 
 a right upon it equal to the log-runner; and the proprietor of the 
 soil under the bed of tlie stream has no authority or power to drive 
 him away. 
 
 So it is claimed' anyone has the right to cast his line into its wa- 
 ters, to lure with hook or fly the bass and perch into his hand or 
 landing-net, or to stop with fowling-piece the flight of the teal and 
 mallard as they pass by or over. For these things are also free, 
 and the property of no man until taken. 
 
 But it is claimed that the proprietor of the banks or their lessees- 
 have, under the law, the exclusive right to flsh and shoot upon navi- 
 gable streams; that they can prevent one taking fish in navigable- 
 rivers or shooting wildfowl flying over it; that one has no right to- 
 anchor his boat or stop it for a moment to bait his hook, load his- 
 gun, pull in a fish or pick up a duck, if by so doing he has to cast 
 anchor or fasten to the soil in the bed of the stream. Such acts- 
 are trespasses, it is argued, upon the land of the riparian owner. 
 
 If this principle be established as law, then there can be no fish- 
 ing or shooting for the man without riparian rights, or who is too 
 poor or lowly to gain admittance to a club, except by license or 
 permission from his more fortunate neighbor, save upon the sur- 
 face of the great lakes or upon government or state land, at a gi'cat 
 distance from his home. 
 
 It is a matter of common knowledge that clubs of wealthy sports- 
 men are now following up the planting of brook trout in waters 
 by the fish commissioners, and leasing, as far as possible, the lands 
 through which the streams so stocked run, for the purpose of 
 aggrandizing to themselves the benefits of the endeavor of the 
 State to increase the supply of fish food at the public expense. 
 
 This is the practical selling out of the public waters, the navi- 
 gable streams of the State, for purposes of fishing and fowling, to 
 a favored few, to be stocked and replenished year by year at the 
 expense of the public, and the shutting out of the great mass of 
 the people, who bear the burden of such expense, from a right 
 and enjoyment as dear to some of them, at least, as it can be to- 
 any riparian owner along such streams, or any member of a club- 
 or syndicate who has leased such owner's premises. 
 
 It is well-settled law, with no respectable authority disputing it.
 
 516 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 that even where a person owns the soil by grant, and the waters 
 of the sea or a navigable lake encroach upon it, and it thereby be- 
 comes covered with navigable water, and a part of the sea or lake, 
 until such waters recede, or the land is otherwise reclaimed, and, 
 SO long as it continues navigable, the public right to use it for pur- 
 poses of navigation prevails. As long as it remains as it is, the 
 people — the common public — have a right to navigate it. They 
 can cross ov^er it, and pass up and down it, and the owner is 
 powerless to stop them. 
 
 And if the people have this right to pass over it, they have the 
 right to take fish in its waters by hook and line, or in any other 
 way common to all under our laws. They have the right to kill 
 or capture ducks or other wildfowl resting or feeding upon its 
 waters or flying over it. They have the right to call such ducks 
 or other wildfowl by all the devices known to sportsmen, and not 
 prohibited by the General Grame Laws, and in the seasons not in- 
 hibited by such statutes, from the air, land or lake, upon or over 
 the waters of a navigable bay, as long as it shall remain such. 
 
 If an individual owns the soil by grant, he has a right, no doubt, 
 to reclaim it by dykes or levees, but until he does so the public 
 has the right to use it as long as its waters are navigable. It is a 
 mistake to suppose that there has ever been any decision or ruling 
 which conclusively settles, directly or by analogy, the contention 
 often made that the riparian owners of the shores of navigable 
 waters have an exclusive right to take the fish therein or kill the 
 wildfowl resting or feeding thereon, or flying over the same. Nor 
 does the killing of game upon the premises of another invest the 
 property in such game in the land owner, even though the person 
 killing such game may be a trespasser. There is no analogy be- 
 tween ice forming on such waters, and the fish or fowl in or upon 
 them. The ice belongs to the soil by reason of its attachment 
 thereto, and therefore is considered by most of the authorities as 
 a part of the land, while fish and fowl do not belong to the soil, 
 and are no part of the land. There is no proprietorship or prop- 
 erty in them until captured or killed. 
 
 In Bigelow v. Shaio, C5 Mich. 341, 8 West. Eep. 781, the own- 
 ership of ice is determined, and the various cases bearing upon the 
 subject, and upon the rights of riparian owners on navigable and
 
 Chap. XXIII.] GAME AND FOKESTRY LAWS. 517 
 
 non-navigable waters, are cited or reviewed. It is tliere held that 
 the ownership of the soil, and not the possession of the water, car- 
 ries the property in the ice forming upon streams and ponds.' 
 None of the cases cited give any support to the riparian owner's 
 claim.' 
 
 In Lincoln, v. Davis^ 53 Mich. 375, 2[r. Justice Cainpl)ell, in 
 the prevailing opinion, says: " Such fishing as is done with lines 
 from boats in narrow streams cannot be complained of by ripariaji 
 owners. The fish are like any other animalsycrte naturce, and, in 
 this region, have always been regarded as open to capture by those 
 who have a right to be where they are captured." This language 
 seems to settle the question of fishing and must, by every legal 
 analogy, apply to wildfowl as well as to fish and animals. 
 
 In Marsh v. CoXby^ 39 Mich. 626, and Burroughs v. WhitwcuVy 
 59 Mich. 279, the decisions were based upon principles applicable 
 to non-navigable waters and to ponds whose soil and shores were 
 held by grant. In neither case could the party claiming the right 
 to take fish in opposition to the right of the land owner get his 
 boat upon the pond without trespassing upon the premises of such 
 owner, and he had no right to be there for any purpose. 
 
 In the latter case he had been forbidden entry upon such prem- 
 ises. In the case of Marsh, v. Colhy he was held not liable in tres- 
 pass because he had not been so forbidden before commencement 
 of suit. In neither case was it adjudged that he could not have 
 taken fish with hook and line if he had been lawfully upon the 
 pond with his boat, or that the fish in the pond was the exclusive 
 property of the land owner. 
 
 As to fishing with nets and other appliances which require stak- 
 ing or fastening to the soil, the customary exclusive use for many 
 years, by the owners of lands fronting upon the great lakes and 
 the rivers connecting them, of the waters adjoining their premises, 
 
 ■ See also Clute v. Fisher, 65 Mich. 48, 8 West. Rep. 121; Lorman v. Benson, 
 
 8 Mich. 18; People's Ice Vo. v. TJte Excelsior, 44 ]^lich. 229; Uiggins v. 
 
 Kmterer, 41 -Mich. 318. 
 ''See Rice v. Ruddiman, 10 Mich. 125; Watson v. Peters, 26 Mich. 508; Max- 
 
 well V. Bay City Bridge Co. 41 Mich. 453; Richardson v. Prentiss, 48 Mich. 
 
 88; Pere Marquette Boom Co. v. Adams, 44 Mich. 404; Clark v. Cainpau, 
 
 19 Mich. 328; Bay City Gaslight Co. v. Industrial Works, 28 Mich. 182; 
 
 Webber v. Pere Marquette Boom Co. 62 Mich. 626; Turner v. Holland, 65 
 
 Mich. 453, 8 West. Kep. 796.
 
 518 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 for purposes of fishery, has doubtless grown into a right which 
 cannot now he well disputed or disturbed. Such right has been 
 recognized by the Legislatures in enacting laws for the better pres- 
 ervation and protection of fish and fisheries, as extending to the 
 channel banks of the rivers, and to one mile from the beach or shore, 
 at low-water mark of the lakes and their straits, inlets and bays.' 
 
 But no such custom has grown up as to hunting. The laws 
 also, as yet, have failed to give to, or recognize in, the riparian 
 owner the absolute or exclusive right to shoot wildfowl upon navi- 
 gable waters in front of his land. He can prevent any person from 
 standing upon or occupying his land to shoot upon the waters, but 
 where such person has a right to go with his boat upon the water, 
 he has a right to pursue, either for purposes of sport or for a live- 
 lihood, the wildfowl found upon the water or winging their flight 
 across it. 
 
 With the right to Icill or captui-e such wildfowl necessarily goes 
 the right to use such means as may be most effective to accomplish 
 such purpose, provided the captor keeps within the general laws 
 of the State relating to the j)rotection of game. He has the right 
 to anchor his boat and to fasten his, decoys to the soil. It injures 
 no right of the riparian owner except the common right, that he 
 possesses with others, of killing and capturing game where he can 
 find it upon the water, highways or public passages. It is said in 
 the dissenting opinion in SterUiuj v. Jacki^on, supra^ that it is not 
 contended that the soil was injured, but the broad ground is 
 taken that the exclusive right to hunt wildfowl in the bay be- 
 longs to the company represented by the plaintiff. It is sought 
 to sustain this claim by the decisions of the English and Irish 
 courts. Its adoption here is to bring into this country that policy 
 of the law relating to wild gam^e which dei^rives every man but 
 the landlord, or his lessee, of the heretofore common public right 
 to fish and hunt upon the public ways and waters of this country, 
 — a policy which in the not far distant future will debar the poor 
 man from any profit or pleasure in the pursuit of game, and some 
 time may perhaps, as in Ireland, permit men to Starve in sight of 
 streams and lakes abounding in fish, and woods filled with wild game. 
 
 'How. (Mich.) Stat. § 2173; Lincoln v. Difois, 53 Mich. 375; Solomon v. 
 Orosbeck, 65 Mich. 540, 9 West. Rep. 107.
 
 Chap, XXIII.] DISTINCTION BETWEEN RIVERS AND STRExVMS. 519 
 
 In view of the growing scarcity of game, the efforts of the States, 
 at public expense, to propagate, protect and preserve it, and the 
 evident disposition of a few to ac(pnre dominion, through the ri- 
 parian proprietors, over the inland navigable lakes and streams, 
 and to shut out the great mass of the people from the enjoyment 
 of hunting and fishing, and thus acquire at least a qualified, if not 
 absolute, property in wild fowl, mostly migratory, and seeking 
 here only resting and feeding grounds in certain seasons of tiie 
 year, the dissenting judge in the case last cited deemed it his duty 
 to protest against any holding that will deprive any man of the 
 common right — as he claimed — of all, to use the public highway's, 
 on water and on land, in the pursuit of fish and wild game, wliich 
 are the property of him who takes them, and which until taken 
 belong to no one. 
 
 And he insists that, in right, justice and law, the navigable 
 streams and other bodies of water, while open to navigation, should 
 be forever free and unrestricted in fishing and fowling to all who 
 Jiave a right to row a boat or push a scow upon them. 
 
 Any other declaration of the law than that which shall forever 
 preserve to all the people of this country the right to fish and hunt 
 upon government and state lands and the public ways of each State, 
 one in common and equal with another, will be a step backward, 
 and unworthy the expounders of the law in a free country, where 
 all are supposed to enjoy equal rights and privileges before the law. 
 
 Section 66. — Distinctio^^ between Mavigahle Rivers 
 and Mere Logging Streams as affecting Fish- 
 ing and Hunting Rights. 
 
 Campbell, J.^ in his dissent in Sterling v. Jackson, st'jyra, 
 conceives that most of the confusion concerning the rights 
 of various persons upon or concerning waters has come from 
 confounding entirely different things. There seems to be a 
 notion that, inasmuch as we have generally in this country re- 
 fused to class our great fresh-water highways among the category 
 of common-law navigable streams which were confined to tide-wa- 
 ters, we have thereby subjected them to the condition of private 
 waters. But this is not so. We have transferred the name of
 
 520 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 navigable waters to our public waterways because they are in iact 
 navigable, and there is no substantial difference in the public rights 
 in fresh and salt water. The only difference of consequence is as- 
 to the ownership of the soil beneath them. By the English law 
 the bed of salt water belonged, presumptively, to the Crown. But 
 the Crown owned it 2&jiis prwatum^ or private property, and it 
 was not owned by the public. It might be owned by private per- 
 sons as royal grantees. So the fishing rights in such waters were 
 presumptively public, but were not always so, as the public right 
 was often extinguished by private privileges. And the authorities 
 indicate that one reason why private lands in salt water did not 
 presumptively go into the water was because, during most of tho 
 time, the water did not come up to the dry-land line so as to make 
 a permanent boundary, so that in the interval there was a space 
 sometimes water and sometimes land by daily tidal action. Some of 
 the cases are referred to in Lorinan v. Benson, 8 Mich. 19. The 
 celebrated treatise of Lord Hale, De Jure Maris et Brachiosum 
 Ejusdem, contains a large share of the learning on the subject. It 
 never made much j)ractical difference who owned the land so long 
 as covered by water. The only matter of much interest concerns 
 the ownership of the shores and shallows. In civil-law countries 
 some have followed the Roman law, which in this, as in some- 
 other matters, is in substance in accord with our ancient law, and 
 recognized private ownership subject to the public rights. In 
 some civil-law countries the bed of the streams was in the hands 
 of tlie Crown, subject to the same public rights. In the United 
 States, where there is no potentate having private interests in mat- 
 ters not belonging to citizens, all enjoyment of the use of prop- 
 erty must be public or private; and, while there is not absolute 
 uniformity, there is a decided tendency to give to private riparian 
 owners the jus pi'ivatum,, as far as it is capable of appropriation 
 for private purposes without injury to the public, and no further. 
 There is really no substantial difference, in most parts of the 
 United States, between public rights in public rivers and waters, 
 whether fresh or salt, not parts of the high seas. In England, as 
 already suggested, in addition to the rights strictly connected with 
 the business of navigation, the public had usually such rights of 
 fishing in salt water as were practicable, but there were exceptions
 
 Chap. XXIII.] DISTINCTION BETWEEN RIVERS AND STREAMS. 521 
 
 of private grants or franchises to the contrary. In fresh puhlic 
 rivers there were also some cases of general j^iiblic fishing, so far 
 as it did not require the nse of the banks or shores, while in other?^ 
 the public could not fish. Mr. AVoolrych intimates that the orig- 
 inal condition was in favor of the public right.' 
 
 It is very difficult, according to all the authorities, to know much 
 about the original condition of affairs of this nature, for histories 
 are silent, and the reports do not go back far enough. But it is 
 everywhere admitted that originally the common law concerning 
 the capture of wild creatures was in substance the same as the 
 civil law, and that the restrictions arose out of the feudal and 
 royal encroachments. If so, then it is easy to see that fishing in 
 public streams was of common right. So far as all wild animals 
 are concerned, the early text-writers make no diffei-ence between 
 beasts, fish and fowls, and are uniform in holding that in all cases 
 they belong to the captor. 
 
 It is the law generally that the riparian owner on any kind 
 of water has presumptively the right to such uses in the shores 
 and bed of the stream as are compatible with the public rights, if 
 any exist, or with private rights connected with the same waters. 
 In rivers the theoretical line of ownership is in the middle thread 
 or line of the stream, unless changed by islands or some other 
 cause of deflection. If the stream is crooked, the curves must be 
 adjusted so as to save all the rights of the different owners. But 
 lakes have no thread; and while there is usually no difiiculty in 
 fixing equitable bounds near the shore, it cannot be done by any 
 mathematical process over any considerable extent of the lake, and 
 if — which does not often happen — there is any occasion for mak- 
 ing partition of the surface, it caTi only be reached by some meas- 
 ure of proportion, requiring judicial or similar ascertainment, and 
 not by running lines from the shore. Small and entirely private 
 lakes are sometimes divided up for such purposes as require sepa- 
 rate use. But for uses like boating and similar surface privilefres, 
 the enjoyment is almost universally held to be in common. This 
 was held by the House of Lords in Minzies v. 21acdonald, 36 Eng. 
 L. & Eq. 20. It was there held that, for all purposes of boating 
 and fishing, the whole lake was open to every riparian owner, 
 
 'Woolrych, Waters, p. 129.
 
 522 IMPOSED DUTIES, PERSONAL. [Part 11. 
 
 while, as to such fishing as required the use of the shore, each was 
 confined to liis own land, for drawing seines ashore, and the like 
 uses. In streams purely private the enjoyment of rights in the 
 bed of the stream is very important, as dams and other permanent 
 erections may be necessary to get the value of their use, and it may 
 sometimes be desirable to fence or close portions of them for shut- 
 ting out or shutting in what needs such management. 
 
 Every benefit which can be drawn from the use of private wa- 
 ters belongs to the private owners, and no one but the owner has 
 any right to go upon or use them for any purpose whatever, with- 
 out license from the owner. It is as much a wrong against the 
 owner to touch his stream as to touch his land, without his consent. 
 
 But where waters are public there is no part of the open water 
 from which the riparian owner can exclude the public, and, while 
 he may make such erections and appropriations near the shore as 
 will not interfere with the public convenience, he cannot prevent 
 the public from using any part of the water not so shut off. So 
 long as the water is open, the riparian owner's rights in the bed 
 away from the shore are purely theoretical and valueless. He can 
 ■do nothing to impair navigation or any of its incidents. And, as 
 explained in Lincoln v. Davis^ 53 Mich. 375, in our great lakes it 
 would be impossible to ascertain any theoretical rights very far out 
 from the shore. Upon the whole space of navigable surface a ripa- 
 rian owner has for most purposes no better rights than anyone else. 
 
 A difiiculty has, however, been suggested, arising out of the 
 partially public character given to certain streams for floatage pur- 
 poses; and it has been very sensibly urged that in those streams it 
 has always been understood that the beneficial and sole use for all 
 purposes but floatage belonged to the riparian owners. And it is 
 ■claimed that the rules as to the use of small as well as great streams 
 must, in order to produce uniformity, either extend the rights of 
 •owners in the large waters or destroy the valuable ownership in 
 the small ones. 
 
 The difficulty, however, is more apparent than real. As already 
 suggested, in this country navigable and public streams mean the 
 same thing. No stream or water can come within that category 
 that is not a public waterway for general purposes of transporta- 
 tion by some sort of boats or vessels. All of our great lakes and
 
 'Chap. XXIII. ] DISTINCTION BETWEEN RIVERS AND STRKxVMS. 523 
 
 their connecting waters have been declared, as well as used, as pub- 
 lic navigable waters, and are such in their entirety. There was a 
 time wlieu most of the inland rivers of the northwest territor}', 
 even though shallow and interrupted by rapids, were mediums of 
 travel and transportation of great value, in the absence of land 
 highways and vehicles, although the boats used were canoes and 
 batteaux which no one would now think of using for any such 
 purpose. While so used they were treated as naviga])le and valu- 
 able public highways, and are so declared by the Ordinance of 
 1787. But when such streams have become unfitted for valuable 
 public use, and have actually ceased to be used for public high- 
 ways, there is no more reason for holding them to be public than- 
 a land highway that has been abandoned and has become useless. 
 Such has been the universal understanding, and no waters are 
 regarded as public or navigable waters that are not capable of 
 general use, and so aj^propriated in some part at least of their 
 ■course. Instances are found in the common-law authorities of 
 abandoned waters that once were held navigable. There are many 
 ■streams in this country which were once public ways that now are, 
 ■tmd long have been, appropriated entirely to private uses, and 
 could not be made valuable for any other. 
 
 The distinction is obvious between streams which are highways 
 and publicly enjoyed as such, and streams which, if cajjable of 
 bearing any class of boats or water-craft, are not serviceable for 
 any general convenience or utility in that way. Highways by 
 land always rest on a supposed public convenience bordering on 
 actual, as it is professedly based on legal, necessity. Streams ex- 
 ist before population, and may serve useful though limited pur- 
 poses when no other facilities exist, as trails and natural roads are 
 used for lack of roads laid out and improved. When no lono-er 
 serving that office, no one would regard them as public ways. 
 
 A somewhat similar difference is recognized between navigation 
 and floatage. While language is sometimes carelessly misapplied, 
 no one can seriously confound streams which are or may be used 
 for general purposes of passage and transportation, with those that 
 furnish more or less means of floating down the current logs and 
 similar articles which carry nothing, and are not carried or pro 
 polled, but go as the current takes them, and are only kept from
 
 524 IMPOSED DUTIES, PERSONAL. [Part !!► 
 
 jams or stranding by constant attention. It was held in Moore v. 
 Sanhorne, 2 Mich. 519, that streams capable of furnishing such 
 floatage and running, where it was necessary to get logs moved,, 
 were to be regarded as subject to that burden, and that decision, 
 which is in harmony with decisions in other lumbering regions 
 has been followed. But while such uses have been recognized, it 
 has not been considered that it made of streams not suited to other 
 purposes either navigable waters or public streams. Those uses 
 are peculiar and to some extent anomalous. They are entirely in- 
 consistent with anything like general public purposes, and very few 
 logging streams are available steadily, or without more or less flood- 
 ing. During parts of the year the streams are entirely idle and 
 useless for any transportation. There is language used in that 
 case, as well as in some others, which cannot be safely applied be- 
 yond the occasion and its analogies, and experience has shown that 
 very great abuses have grown up under some of the rules appa- 
 rently laid down, but not involved in the issue, which render it 
 doubtful whether the court was not seriously misled into announc- 
 ing doctrines much too broadly. But the decisions made since, 
 while recognizing the authority of the precedent, have never con- 
 founded log-driving with navigation, or logging streams with pub- 
 lic waters. The practice, so far as it is legal at all, is one arising 
 out of a supposed necessity, and cannot be enlarged. So far as it 
 follows the analogies of ways, it has little resemblance to the use- 
 of highways except as to respecting mutual rights, and, from the 
 litigation, it would seem that private rights are not very religiously 
 respected in the use of these streams. The case of Grand Rapids 
 Booming Co. v. Jarvis, 30 Mich. 308, illustrates forcibly some of 
 the difficulties of the subject, and the abuses which have grown 
 up under it, even in actually navigable streams. The existence of 
 a distinction between public rights of floatage and navigation is 
 somewhat referred to in Middleton v. Flat River Booming Co.^, 
 27 Mich. 533, where it was distinctly held that rights of floatage- 
 were not superior to the rights of mill owners. The whole doc- 
 trine that submits purely private waters to easements in favor of 
 floating logs is one which can only be justified by that particular 
 necessity, and cannot go beyond it. Such limited and special use 
 is not consistent with the waters being public. It is not a doctjine
 
 Chap. XXIII.] DISTINCTION BETWEEN RIVERS AND STREAMS. 525 
 
 that ought to be enlarged, and, as an original question, it is not 
 very clearly sound. 
 
 In considering the respective rights claimed to exist in Stei'ling 
 V. .Jackson, supra, the court had nothing to do with questions which 
 iirise in private waters. In Harsh v. Col/ji/, 39 Mich. 620, the lake 
 was entirely owned by adjacent proprietors, and the real controversj' 
 was whether each of them had common rights of boating and an- 
 gling all over the lake, or whether each must keep witliin specified 
 limits. This question was not passed upon, because tlie court rec- 
 ognized the general usage of fishing, where not forbidden, in such 
 waters, and held it was no trespass. 
 
 In the former case, assuming all that was claimed as to owner- 
 ship of the bottom of the lake or bay, there is no ground for claim- 
 ing the place of the occurrence is not open to the public — and 
 therefore to the defendant — for all the incidents of boating and 
 navigation. And this being so, it is insisted by Campbell, -/, there 
 IS not any rule of law which deprived defendant of the right of 
 taking or killing there any wild creature of air or water. 
 
 We cannot in this country treat the Game Laws of England as 
 any part of our inheritance. It has not been done anywhere. 
 And it is especially true where care was taken at an eai-ly stage 
 of the territorial existence to expressly abrogate the operation of 
 any English statutes. Even the English common law has always 
 been considered as applicable in this country only to the extent 
 that it has not been modified by our usages or necessities. It 
 should not be forgotten that the usages in the Northwest on pul)lic 
 waters, especially as to shooting and fishing, existed under the 
 French customs for nearly a century, and it would hardly be con- 
 sistent with free institutions to subject the inhabitants to any less lib- 
 eral usages than those which were not only tolei'ated, but favored, 
 under a very despotic government. 
 
 The common law which we inherit is the common law untainted 
 by feudalism or royal prerogative. And if we eliminate these ele- 
 ments and their statutory modifications, the question presents no 
 difficulties. 
 
 Even in the case of Blades v. Tli<j(js, 13 C. B. X. S. S66, which, 
 after all, was decided on the strength of a previous Exchequer 
 Chamber decision that had not been supposed to go so far, that
 
 526 IMPOSED DUTIES, PERSONAL. [Part II.. 
 
 game killed on a man's land by a trespasser belonged to the land 
 owner, it was not pretended that this was not a long step forward, 
 even under the Game Laws, and not sustainable except as a piece- 
 of new judicial legislation. It has not yet been carried far enough 
 to make the property so complete that larceny will lie for the bird 
 or animal killed and taken, and this, of itself, condemns the doc- 
 trine. But in that case it was practically admitted that the origi- 
 nal common law did not vary from the civil law, and was conclu- 
 sive against any ownership but that of the captor. According to- 
 all the elementary common-law writers, no one had any interest 
 whatever in any wild creature of the earth, air or water until he- 
 had taken it into his own keeping, alive or dead, and then only so- 
 long as it did not escape from his custody.' 
 
 It is also common-law doctrine, never changed until by the rul- 
 ings of Blades v. Higgs, supra, that game started in one man's 
 soil and killed in another belongs to the hunter, — as was the civil- 
 law rule also." And even in a case of lawful park or warren, it 
 was lawful for anyone to take animals escaped from their inclos- 
 ure.' And animals not included under the designation of the 
 Game Laws belong in any case to the first taker.* 
 
 Blackstone's notion that the property of animals ferca naturae 
 was in the Crown has no foundation in authority, and is roughly 
 handled by his annotators. In Tomlins' Law Dictionary, Game 
 Laios, Serjeant Tomlins repeats twice, and emphatically, that the 
 Game Laws are a system of positive regulations, introduced and 
 confirmed by statute.* Tomlins also indicates that, while these 
 laws are in some quarters regarded as desirable, there is a very 
 strong feeling in many quarters that they are cruel and unreason- 
 able, and he refers to a criticism from the bench in 1 Term Re- 
 ports, 49, where they are declared to be an oppressive remnant of 
 the ancient arbitrary Forest Laws, under which, in darker ages, the 
 
 •Bac. Abr. Game; Finch, Com. Law, p. 45; Wood, Inst. 367; Tomlins, Law 
 
 Diet. Ferce Naturce, Game Laics; Doctor and Student, chap. 5; 1 Hale, P. 
 
 C 511; Fost. Cr. L. 366; 3 Inst. 199, 233 a; Co. Litt. 122; Com. Dig. 
 
 Biens, F; 11 Coke, 87 b; 2 RoUe, 812, p. 25; 3 Inst. 109; Fitzh. K B. 86; 
 
 Mallocke v. Eadly, 3 Lev. 227. 
 ^Sutton V. Moody, 1 Ld. Raym. 251; Ersk. Inst, 108; Mackenzie, Roman L. 
 
 168, 189. 
 8 Wood, Inst. 314; Churchward v. Studdy, 14 East, 249. 
 ^Schulte, Aquatic Rights, 8. 
 6 And see Christian's note to 2 Bl. Com. 416, and 4 Bl. 175.
 
 Chap. XXIII.] DISTINCTION BETWEEN EIVERS AXD STREAMS. 527 
 
 killing one of the King's deer was equally penal with murdering 
 one of his subjects. The doctrine quite often laid down by learned 
 writers, that they were passed to prevent common people from 
 wasting their time in vain amusements, is not one which would 
 meet much favor in this country, where a gun has always been as 
 much an every-day implement of farmers and people of all sorts 
 as any other article. 
 
 It is one of the popular privileges secured by the charters that 
 no more land should be put into forests. It is also settled that no 
 one can create a warren (which means a place privileged for keep- 
 ing certain wild animals and fowls) except by the King's grant or 
 prescription.' 
 
 And the recognized reason of this is that it is a monopoly of 
 animals which belong to the people at large, and within the laws 
 against monopoly. And while the courts in some cases have given 
 the privileges of a warren extent enough to include several classes 
 of wildfowl not in the old list, including waterfowl, the better 
 doctrine is that the list cannot be enlarged from the original 
 classes except by the statute." 
 
 It was held in Duke of Devonshire v. Lodge, 7 Barn. & C. 36^ 
 that the list could not be so enlarged, and that therefore no tres- 
 pass was committed against rights of warren in killing grouse. 
 The cases of Ccu'rington v. Taylor, 11 East, 571, and Keeble v^ 
 Hiclieringill, Id. 574, were cases where a man was charged with 
 willfully disturbing a decoy, which was lawfully owned by the 
 plaintiff. The former case is not reasoned out, but is based on the 
 latter, which held expressly that the grievance was not in shooting 
 wildfowl — for that was lawful, — but for shooting for the mere 
 purpose of disturbing the decoy pond. And the decision was put 
 on the ground that a willful and malicious disturbance of another's 
 business or occupation of any kind, whereby it is interrupted, is 
 actionable. The latter case has some foundation of reason. The 
 former is not well reasoned, and can only be supported on the 
 ground that the appellate court in banc could not weigh the testi- 
 mony. Both cases hold it lawful to shoot wildfowl, except against 
 Parliament and any restrictions which do not seem to apply to- 
 
 ' 1 Coke, Inst. 233; Case of the Monopolies, 11 Coke, 87. 
 * See Tomlins, Law Diet. Warren, and references.
 
 528 IMPOSED DUTIES, PERSONAL. [Fart II. 
 
 particular places. It is worthy of remark that in Hannam v. 
 Mockett, 2 Barn. & C. 934, it was held not actionable to disturb a 
 rookerj. Some of the judges intimated that rooks were not v^alu- 
 able, but the case was chiefly made to turn on the better reason 
 that it was not shown that there was a presumption or lixed right 
 to maintain it. If the Pickwick Papers had been published, per- 
 liaps some of the bench would have been better informed concern- 
 ing the character of the rook, which is known among naturalists 
 as frugivorous. And it is understood that an estate is made valu- 
 able in the market wiiich has a rookery.' 
 
 It is not strange that courts should differ in their construction 
 and application of the Game Laws. No one has yet held them to 
 be in afhrmance of the common law, but some judges have evi- 
 dently regarded them as of great value in furthering the landed 
 interests, and have stretched them beyond reason, while others 
 have more correctly treated them as entitled to no expansion. But, 
 with few exceptions, they have not favored holding acts to be ac- 
 tionable trespasses Avhere there was no substantial injury. Cowell, 
 in his definition of a park and its incidents, says that " the owner 
 cannot have an action against such as hunt in his park if it lie 
 open." There are very few precedents of actions for fowling or 
 angling, excej)t under the statutes, and it has generally been held 
 that these actions will not lie unless the place of the trespass was 
 inclosed.* The cases have not been uniform on the question 
 whether it is a trespass to shoot from a highwa}^ and kill game on 
 private land. In Mayhew v. Wardley, 14 C. B. N. S. 548, it was 
 held to be a trespass, but in Kernjon v. Hart^ 6 Best & S. 2 19, this 
 doctrine was disapproved, and shooting from the highway at a 
 bird in the air and killing it, and picking it up in a private close, 
 was held not within the law. There is one case where a person, 
 standing in the highway, and sending his dog inside of the fence 
 after game, was held to have entered the land, and, among other 
 things, the highway was said to be part of the estate. In Chuixh- 
 ward V. Studdy^ 14 East, 249, however, it was held that where A 
 started a hare on B's ground and captured it on C's ground, he 
 had an action against C for seizing it. 
 
 ' Essex, Rookery. 
 
 ^Wickes V. Clutterbuck, 2 Bing. 483; Rex v. Daman, 3 Barn. & Aid. 378.
 
 Chap. XXIIL] DISTINCTION BETWEEN RIVERS AND STREAMS. 520 
 
 It would be useless to try to reconcile all of the English decis- 
 ions. The M'hole law is more or less tinged with the policy of the 
 squirearchy. But this gives special importance to the silence of 
 the law as to angling or fowling on public waters. The fen coun- 
 tries of England are famous, and the only way to reach waterfowl 
 is by the use of boats. There is no reported case where it has 
 been held actionable to shoot or angle from a boat in any class of 
 public streams. There is no case that has been found holding that 
 a person may not kill birds or beasts actually in tlie highway. If 
 such conduct were regarded as illegal, it is very strange that, in 
 the great multitude of prosecutions, nothing of this sort has been 
 brought forward. 
 
 The American cases do not favor any doctrine which would re- 
 strict rights on public waters, and these uniform usages in our own 
 waters we are bound to respect. There is no difference in prin- 
 ciple or authority between fish and fowl. The English statutes, 
 and such American statutes as we have, must necessarily differ in 
 the nature of their regulations; but the questions of locality and 
 ownership must be analogous. It was declared by the majority 
 opinion in Lincoln v. Davis^ 53 Mich. 875, that angling from a 
 boat in navigable streams is lawful. There was never any prin- 
 ciple or practice which confined rights of travel on highwaj-s by 
 land or by water to commercial purposes. Boats and vehicles are 
 as lawfully used for pleasure and recreation as for an}- other pur- 
 poses. Both in England and in the United States the fislieries 
 are always brought under the Navigation Laws. In all pursuit of 
 -animals, the vehicle must conform to the occasion, and boats are 
 as commonly used for fowling as for fishing, and small boats are 
 oftener used for one or the other than for business. If a person 
 Avho has a right to be where he is cannot lawfully take there what 
 any of the public owns when captured, and not before, the reason 
 is beyond the common understanding. It is no concern of the 
 borderer on a highway what any other person does upon it, if he 
 neither encroaches on the soil nor is guilty of a public or private 
 nuisance. Even a riparian proprietor does not own the water 
 which flows over his land. His soil, if he has any, is M-liere no 
 boat can injure it. 
 
 It is of some significance that Legislatures have attempted to 
 34
 
 530 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 regulate both sporting and fishing, and have made provision, by 
 money and by other means, for propagating fish. It is at least 
 questionable whether this can lawfully be done in aid of interests 
 which are all private. 
 
 In rivers navigable at common law the fishery is common to all 
 citizens of the State, under such restraints as the law may impose. 
 In rivers not navigable at common law, the fishery, according ta 
 the weight of authority, whether sustainable on principle or not^ 
 belongs to the owners of the soil adjoining to and under the river^ 
 for the owner of the land is owner to the thread of the river, 
 usque ad filum mediutn aquoB.^ As the common-law test of the 
 ebb and flow of the tide, for the navigability of rivers, is not gen- 
 erally accepted in this country, although recognized in Massachu- 
 setts, Connecticut and as to some rivers in New York, as to some 
 of which the civil-law rule prevails, the jurisdiction over them 
 having been acquired from the government of the IS'etherlands,'' 
 the rule of fishery must follow the classification of navigable wa- 
 ters in the various States, not including, however, in that term, so 
 far as the right of public fishery is involved, such streams as are 
 only suitable for logging.* 
 
 Section 67.— Regulation of Fisheries hy Statute. 
 
 The recognition of the title of the riparian owner to the thread 
 of the stream seems, by the weight of authority, though perhaps 
 not according to the clearest principle, to involve his right to con- 
 trol the fishery. But fisheries, even in waters not navigable, are 
 so far public rights that the Legislature of the State may ordain 
 and establish regulations to prevent the interruption of the 
 passage of fish, and promote the usual and uninterrupted en- 
 
 ' Hale, De Jure Maris, p. 6, citing Baker v. Henry, temp. Edw. I. ; Owen v. 
 Dunchvide, Pr. 2 Jac. I. B. R. See also authorities previously cited to 
 this point, and Hargr. Law Tracts, 6, 7, 8; Davies, Rep. 152; People v. 
 Piatt, 17 Johns. 209; Adams v. Pease, 2 Conn. 481; Carter v. Murcot, 4 
 Burr. 2162; Com. v. Chapin, 5 Pick. 199. 
 
 ^Smith V. Boclmter, 93 N. Y. 463, 481. 
 
 ^Com. V. Charlestoion, 1 Pick. 186, note 1; 3 Kent, Com. 410; Ingraham v. 
 Wilkinson, 4 Pick. 273, notes 1, 2; Com. v. Chopin, 5 Pick. 199; People 
 V. Canal Appraisers, 13 Wend. 355; Beii'y v. Carle, 3 Greenl. 269; Spring 
 V. Russell, 7 Greenl. 273; Chenango Bridge Co. v. Paige, 83 N. Y. 178; 
 Ca^tello V. Landwehr, 28 Wis. 522; Steamboat Globe v. Kurtz, 4 G. Greene, 
 433; Scott V. Chicago, 1 Biss. 510; TAe Vancouver, 2 Sawy. 481.
 
 Chap. XXIII.] REGULATION OF FISHERIES BY STATUTE. 531 
 
 joyment of the riglit of the riparian owners.' The taking of 
 fish with nets in specified waters may be prohibited by the Legis- 
 latnre and the setting of nets for that purpose dechired to be a 
 pubhc nuisance." The question of title of the riparian owner has 
 been already examined." The right of passage and of transporta- 
 tion upon rivers not strictly navigable belongs to the public, by 
 the principles of the common law; but the right of fishery accord- 
 ing to the current of decisions remains unrestricted, so that each 
 proprietor of the land adjoining, where his title is recognized in 
 the bed of the river, has a several or exclusive right of fishing, 
 with such nets and methods as he sees proper to use,* immediately 
 before his land, down to the middle of the river, and may prevent 
 all others from participating in it, and he will have a right of ac- 
 tion against any who shall usurp the exercise of it without his con- 
 sent.^ But this individual right must not be exercised so as to 
 invade the equal right of other riparian proprietors to take fish." 
 There must be no physical hindrance placed to the free passage of 
 the fish up and down the stream," and especially must there be no 
 obstruction to their entrance into the lakes or ponds where they 
 
 ^Holyoke Water Power Go. v. Lyman, 82 U. S. 15 Wall. 500, 21 L. ed. 133. 
 
 See Com. v. Manchester (Mass. Sept. 18, 1890) 9 L. R. A. 236; McGlain v. 
 
 TilUon, 82 :\re. 281; Clarke v. Providence, 16 R. I. , 1 L. R. A. 725; 
 
 State V. Smith. 61 Vt. 346 ; Clinton v. Bacon, 56 Conn. 508 ; White v. Patty, 57 
 
 Conn. 576; United States v. Nickcrson, 58 U. S. 17 How. 204, 15 L. ed. 
 
 219. 
 
 ^Latcton v. Steele, 119 N. Y. 226, 7 L. R. A. 134. 
 
 ^Ante, pp. 402-417. 
 
 *State V. SkolfieU, 63 Me. 266. 
 
 ^Com. V. Cluirlestown, 1 Pick. 186, note 1; 3 Kent, Com. 410: TngraJiam v. 
 Wilkinson, 4 Pick. 273. notes 1, 2; Com. v. Chapin, 5 Pick. 199; People 
 V. Canal Appraisers, 13 Wend. 355; Berry v. Carle, 3 Qreenl. 2ti9; Spring 
 V. Russell, 7 Greenl. 273; Chenango Bridge Co. v. Paige, 83 N. Y. 178; 
 Castello V. Landwehr, 28 Wis. 522; Steamboat Globe v. Kurtz, 4 G. Greene, 
 433; SaAi v. Chicago, 1 Biss. 510; The Vancouver, 2 Sawy. 481. 
 
 ^Pitkin V. Olmstead, 1 Root, 217 ; Com. v. Buggies, 10 Mass. 391 ; Boaticright 
 V. Bookman, Rice,L. 447, 451; Jackson v. Lewis, Cheves, L. 259; Com. 
 V. Chapin, 5 Pick. 199. 
 
 "'Hamilton v. Donegall, 3 Ridgway, 267; Bwld v. Sipp, 13 N. J. L. 348; Leern- 
 field V. Lonsdale, L. R. 5 C. P. 657; Hayden v. Noyes, 5 Conn. 391; State 
 V. Franklin Falls Co. 49 N. H. 240; People v. Reed, 47 Barb. 235; Barden 
 V. Crocker, 10 Pick. 383; Cottrill v. My rick, 12 Me. 222; Shrunk v. Schuyl- 
 kill JSav. Go. 14 Serg. & R. 11; JVorth Yai'mouth v. Skillings, 45 Me. 133; 
 Eubanks v. Pence, 5 Litt. (Ky.) 338; State v. Skolfield, 63 Me. 266.
 
 632 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 bj instinct prepare for the multiplication of the species/ This 
 restriction rests upon that universal principle at the base of all just 
 laws, and proper exercise of rights, sic utere tuo ut alienuin non 
 Icedas."^ In England, where the powers of the Legislature are un- 
 fettered bj a written Constitution, and no Act of a prior Parlia- 
 ment can abridge the power of a subsequent one, there could be 
 no doubt of the authority to pass a statute requiring the owner of 
 any dam to erect and maintain such fishways as commissioners ap- 
 pointed for the purpose might prescribe.^ There was early legis- 
 lation to this effect. By Prov. Stat., 8 Ann., chap. 3, all persons 
 were prohibited from placing across rivers or streams any fixed 
 implements or machine by which the free passage of fish may be 
 obstructed, and by Prov. Stat., 15 Geo. II., chap. 6, it is required 
 of those v.'ho build dams across streams or rivers, to keep open, 
 during a certain period, sluiceways or passages for the fish to pass 
 through. No prescriptive right to bar the passage of fish can be 
 acquired,* and it is an indictable offense," and is punishable by 
 statute.* Provisions have been adopted in many States requiring 
 the passage of fish to their spawning places to be unobstructed. 
 
 In Vinton v. Welsh, 9 Pick, 87, it was held, as regards the plain- 
 tiff's charter, that " the Legislature without doubt meant to give 
 the same right in the dam to be erected which proprietors of other 
 dams have — that is, to maintain them subject only to the inconve- 
 nience of keeping open a passage for fish during a small portion of 
 the year.'" Anything which substantially and materially interferes 
 with the passage of fish up and down stream is prohibited by the 
 Illinois Act of 1885.* 
 
 ^Stoughton v. Baker, 4 Mass. 522; Com. v. Tiffany, 119 Mass. 300; Com. v. 
 
 Vincent, 108 Mass. 44(>; Holyoke Water Power Co. v. Lyman, 82 U. S. 15 
 
 Wall. 500, 21 L. ed. 183; Hooker v, Gummings, 20 Johns. 90; Bristol v. 
 
 Ousatonic Water Co. 42 Conn. 403. 
 ^Warren v. Matthews, 1 Salk. 357; Weld v. Hornby, 7 East, 195. 
 3 1 Bl. Com. 90, 160, 161; Hodgdon v. Little, 14 0. B. N. S. Ill, 16 C. B. N, 
 
 S. 198; Rolle v. Whyte, L. R. 3 Q. B. 286, 306. 
 *8tate V. Franklin Falls Co. 49 N. H. 240. 
 ^Cottrill V. Myrick, 12 Me. 222. 
 ^Gom. V. Tiffany, 119 Mass. 300; North Yarmouth v. Skillings, 45 Me. 143; 
 
 People V. Canal Appraisers, 33 N. Y. 461. 
 'See also Randolph v. Brainiree, 4 Mass. 316; French v. Braintree Mfg. Co. 
 
 23 Pick. 216; White v. South Shore R. Co. 6 Cush. 412; Boston & R. Mill- 
 
 Dam Corp. v. Newman, 12 Pick. 467; Hazen v. Esse.v Co. 12 Cush. 478; 
 
 Com. V. Essex Co. 13 Gray, 249; Talbot v, Hudson, 16 Gray, 417, 426. 
 ^Summers v. People, 29 111. App. 170.
 
 Chap. XXIII.] DESTRUCTION OF NETS ILLEGALLY USED. 533 
 
 After a manufacturing corporation, chartered with authority to 
 construct and maintain a dam across a river, paying damages to 
 the owners of fishing rights above, whose charter does not ex- 
 pressly exempt it from maintaining the dam without a fisliway, 
 and is subject to amendment, alteration or repeal at the pleasure 
 of the Legislature, has paid such damages, and constructed the 
 dam without a fishway, so as to destroy the fishing rights above, 
 and to impair fishing rights below, for the injury to which last no 
 compensation has ever been made or provided, that corporation, 
 or any other which purchases its dam under the authority of a sub- 
 sequent statute, may be constitutionally required by the Legislature 
 to construct a fishway in the dam to the satisfaction of commis- 
 sioners appointed for the purpose.' 
 
 Section Q^.— Destruction of JVets Illegally Used. 
 
 The State possesses ample authority to rid the fisheries of such 
 devices as are destructive of them without negotiations with or ju- 
 dicial proceedings against the offending owners who have con- 
 structed or placed such devices in the fisheries in violation of the 
 law protecting the same.'' The inquiry in Lawton v. Steele, 119 
 N. Y. 226, 7 L. E. A. 134, was whether the destruction of the nets 
 set in violation of law, authorized and required by the Act of 1883, 
 is simply a proper, reasonable and necessary regulation for the 
 abatement of the nuisance, or transcends that purpose, and is to 
 be regarded as the imposition and infliction of a forfeiture of the 
 owner's right of property in the nets, in the nature of a punish- 
 ment. It was admitted as very near the border line, but the legis- 
 lation was sustained on the ground that the destruction of nets so 
 placed is a reasonable incident of the power of the abatement of 
 the nuisance. The owner of the nets is deprived of his property, 
 not as the direct object of the law, but as incident to the abate- 
 ment of the nuisance. 
 
 Where a private person is authorized to abate a public nui- 
 sance, as in case of a house built in a highway, or a gate across 
 
 ^Inland Fi.^heries Comrs. v. Holyoke Water P. Co. 104 ]\Iass. 446. 
 
 ^Phelps V. Rncey, 60 N. Y. 10, approved in State v. Snover, 42 N. J. L. 345, 
 
 and Marjner v. People. 97 111. 332; Williams y. Blackwall, 2 Ilurl. & C. 
 
 33; Smith v. Leviaus, 8 N. Y. 472.
 
 534 IMPOSED DUTIES, PERSONAL. [Pari II. 
 
 it, wliich obstructs and prevents his passa^^e thereon, it was 
 long ago held that he was not required to observe particular 
 care in abating the nuisance, and that although the gate might 
 have been opened without cutting it down, yet the cutting 
 down would be lawful.' But the general rule undoubtedly is 
 that the abatement must be limited by necessity, and no wanton 
 and unnecessary injury must be committed/ It is conceivable 
 that nets illegally set could, with the use of care, be removed with- 
 out destroying them. But, in view of their position, the difficulty 
 attending their removal, the liability to injury in the process and 
 their comparatively small value, the court ruled that the Legislature 
 could adjudge their destruction as a reasonable means of abating 
 the nuisance. 
 
 The case of State v, Snover, 42 N". J. L. 341, tends to sustain 
 the conclusion reached in Lawton v. Steele^ supra. The action in 
 that case was trespass, for entering the plaintiffs lands, bordering 
 a non-navigable stream in Xew Jersey, and destroying a fish basket, 
 in the waters diverted therefrom, placed for the catching of fish, 
 contrary to a statute. The court held the statute to be a justification. 
 
 The case of Williams v. Blaokwall, 2 Hurl. & C. 33, arose 
 under an Act of Parliament which authorized the summary de- 
 struction, by fish wardens, of what were known as salmon engines, 
 beinsr fish nets set in violation of the Act. The case is not 'an au- 
 thority upon the power of our Legislatures under the limitations 
 of the State Constitutions, but the legislation upon which the ac- 
 tion was founded shows that, in a country governed by the prin- 
 ciples of Magna Charta, such legislation is not deemed inconsistent 
 with the fundamental doctrines of civil liberty. 
 
 For the protection of the fish, and for the maintenance of equal- 
 ity in respect to the right to fish, the State may regulate fisheries, 
 if the regulations are reasonable, and do not extend beyond the 
 prevention of threatened injuries.^ The taking of fish with nets 
 
 ^Lodie V. Arnold, 2 Salk. 458, and cases cited. 
 
 »3 Bl. Com. p. 6, note. 
 
 3 See Holyoke Wate)- Power Co. v. Lipnnn, 82 U. S. 15 Wall. 500, 31 L. ed. 
 133; Com. v. Chapin, 5 Pick. 199; Com. v. Essex Co. 13 Gray, 247; StMte 
 V. Snover, 42 N. J. L. 341; Doughty v. Conover, Id. 193. In the last case 
 the Statute under consideration prohibited tlie use of fish nets at certain 
 times of the year in particular counties. See also Inland Fisheries Comrs. 
 V. Holyoke 'Water Power Co. 104 Mass. 446, 6 Am. Rep. 247.
 
 Chap. XXIII.] DESTRUCTION OF NETS ILLEGALLY USED. 535 
 
 in specified waters may be prohibited by the Legishitnre, and tlie 
 ^letting of nets for that purpose declared to be a public nuisance.' 
 Under Me. Laws 1SS5, chap. 2G1, prohil>iting the taking of men- 
 haden with purse or drag seines in any bay " where any entrance 
 to the same, or any part thereof, from land to land, is not more 
 than 3 nautical miles in width," where a bay extending more than 
 S miles from headland to headland contains islands making differ- 
 ent entrances, the width of the entrance is tlie statute test, not 
 the length of the front between headlands." Me. Rev. Stat., chap. 
 40, § 70, pi'ohibiting the use of a net, other than a dip-net, in fresh 
 water, applies to the Grand Fond in Kennebec County, Maine.' 
 The spreading of nets by vessels from the lake, three miles up the 
 Orand River from its mouth, is a violation of Mich. Laws 1885, 
 Act 'No. 10.* A law forbidding the catching of fish by seines, 
 nets or traps, in the waters of the State, interferes with no consti- 
 tutional right.* Korth Carolina Acts 1875, chap, 115, § 183, does 
 not preclude one engaged in a seine-fishery from removing stakes 
 put to operate a pond-net.' Under the proviso to Tenn. Acts 
 1879, chap. 198, making the penalties prescribed inapplicable " to 
 persons owning private ponds, and to those owning the land on 
 both sides of a running stream, the same being closed by a sub- 
 stantial fence," one who catches fish with a net in such a stream 
 by verbal permission from the owner of the land, although in his 
 absence, commits no violation of the law.'' Vt. Act 18S2, Xo. 
 117, § 2, prohibiting all net fishing in Lake Champlain,orin rivers 
 emptying into the lake within ten miles from the mouth, is held 
 constitutional as a regulation, and not prohibiting the fishing.* 
 
 Yt. Acts 1882, Xo. 117, § 1, does not limit the jurisdiction of 
 fish wardens to the town in which they were appointed, but they 
 have authority to make an arrest for the violation of Fish Laws in 
 any town throughout the State.* A provision in a statute for the 
 
 ^Lawton v. Steele. 119 N. Y. 246, 7 L. R. A. 134. 
 
 ^MoClain v. TilUon, 83 Me. 281. 
 
 ^State V. Towle, 80 Me. 349, 6 New Eng. Rep. 644. 
 
 ^People V. KirscJi, 67 Mich. ■'539, 13 West. Rep. 63. 
 
 ''Slate V. B'Munt, 85 Mo. 543. 
 
 ^llettrick v. Page, 83 N. C. 65. 
 
 ''Maney v. State, 6 Lea, 218. - - 
 
 ^Drew V. IlUliker, 56 Vt. 641. 
 
 ^Sheets v. Atherton (Vt. April 12, 1890) 19 Atl. Rep. 926.
 
 536 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 arrest by a fish warden of " persons found violating " the Fish Laws 
 authorizes such arrest without a warrant/ The Statute providing- 
 that the fish warden, on finding a person violating the Fish Laws^ 
 may arrest and prosecute such offender before the proper tribunal, 
 is fairly complied with when he delivers the offender over to the 
 proper prosecuting officer of the place where the offense was com- 
 mitted.* A fish warden who, upon arriving on fishing ground, 
 finds barrels of fish recently taken from the waters, has authority 
 to arrest one who was at that time assisting in taking one of the 
 seines out of the water, and who made hostile threats of violence 
 to the officer, those facts being sufficient evidence that such per- 
 son was violating the law.' The fact that a fish warden did not 
 make an arrest for a violation of the Fish Law before seizing the 
 nets will not render the arrest unlawful, where he made it as ex- 
 peditiously as could reasonably be done under the circumstances.* 
 An arrest will be deemed to have been made from the time and 
 place when the pursuit began, where such pursuit was continuous 
 until the arrest was made.^ 
 
 The penalty for fishing without a license, in a fishery district 
 subject to a board of conservators, can only be recovered by the 
 board of conservators and a duly appointed water-bailiff in the em- 
 ployment of the board entitled to institute the proceedings.* 
 
 Section 69. — Oyster Fisheries. 
 
 There exists a public right to take shell-fish along the shore be- 
 low high-water mark and under the Colonial Ordinance within one 
 hundred yards of the upland, until the flats are inclosed by the 
 proprietor.'' And if there is a right to go upon the flats and to 
 disturb the soil for clams, a fortiori there is a right to pass over 
 them for fishing.* Oj'sters planted in tidal and public waters re- 
 main the property of the person so planting them, and their con- 
 
 12 3 4 f>sheets V. Atlierton (Vt. April 13, 1890) 19 Atl. Kep. 926. 
 
 ^Anderson v. Hamlin, L. R. 25 Q. B. Div. 221. 
 
 ''Weston v. Sampson, 8 Gush. 347; Dunliam v. Lamphere, 3 Gray, 268, 271 j 
 
 Lakeman v. Burnham, 7 Gray, 437; Com. v. Roxbury, 9 Gray, 526, 527; 
 
 Com. V. Bailey, 13 Allen, 541; Proctor v. Wells, 103 Mass. 216; Com. v. 
 
 Manimon, 136 Mass. 456, 458. 
 ^Packard v, Ryder, 144 Mass. 440, 4 New Eng. Rep. 246.
 
 Chap. XXI II.] OYSTER FISHERIES. 537 
 
 version by another furnishes a cause of action to the owner.' A 
 violation of the law in planting an oyster bed does not forfeit one's 
 right to it, or bestow any right upon another party to its confisca- 
 tion or appropriation.^ Proof that defendant's rakes were over- 
 board at the time he sailed over another's oyster bed is sufficient 
 to sustain a conviction under N. Y. Pen. Code, § 640, subd. 8, pro- 
 viding for the interfering with or disturbing the oysters of an- 
 other.' 
 
 A natural, as distinguished from an artificial, oyster bed, is one 
 not planted by man, and in any shoal, reef or bottom where oys- 
 ters are to be found growing, not sparsely or at intervals, but in a 
 mass or stratum, and in sufficient quantities to be valuable to the 
 public* To constitute a private oyster, clam, etc., bed, the oysters 
 must have been planted by those from whom the claimant derives 
 the right to take them, and the place where they were planted 
 must have been in a bed clearly marked out and defined, and 
 where there were no oysters growing spontaneously at the time.' 
 N. Y. Laws 1870, chap. 234, § 1, providing that no person shall 
 catch or take any oysters, clams, mussels or shells in the water of 
 South Bay in Suffolk County with a dredge or drag, does not ap- 
 ply to persons taking their own oysters out of their private lots or 
 beds in the waters of the bay." 
 
 Under N. Y. Pen. Code, § 441, making it a misdemeanor for a 
 person who is not an actual inhabitant and* resident of the State to 
 plant oysters v;ithout the consent of the owner, planting by a non- 
 resident without the owner's consent constitutes the offense; and 
 the question as to intent to violate the law is immaterial.^ A 
 finding of a committee appointed pursuant to the Connecticut Act 
 of 1881 (Conn. Sess. Laws, p. 1C4, § 12), to locate, etc., all natural 
 oyster-beds, is res judicata against a person claiming no private 
 i-ight, but such only as he has in common with the rest of the 
 public* 
 
 ^Sutter V. Van Derveer, 47 Hun, 366; Fleet v. Eegeman, 14 Wend. 42. 
 
 '^Sutter y.Vaa Derveer, 47 Hun, 366. 
 
 ''People V. Decker (Sup. Ct. July 18, 1890) 33 N. Y. S. R. 956. 
 
 *State V. Willis, 104 N. C. 764, 106 N. C. 804. 
 
 » <^People V. Hcaen, 121 N. Y. 313. 
 
 "> People V. Loicndes, 53 Hun, 469. 
 
 ^Wliite V. Pe/.ty, 57 Conn. 576.
 
 538 IMPOSED DUTIES, PERSONAL. [Pai't II. 
 
 Section 10.— Injury to Fishery hy Negligent 
 Navigation. 
 
 But the right of fishing in navigable waters, as the term is un- 
 derstood in a broad sense, not including, however, streams only fit 
 at times for logging, is limited by the superior right of navigation, 
 but only so far as the fishing interferes with the fail', useful and 
 legitimate exercise of that right,' The rights of navigation and 
 ■commerce are always paramount to those of public fisheries.* The 
 master of a vessel is not obliged in such waters to slacken his sail, 
 or change his course, or yield the channel, to a fishing net. Yet 
 if, under the pretense of exercising this right, he turn out of his 
 course to run upon a net, or if he lie in wait till the net be spread, 
 and then crowd sail to reach it, or if he unnecessarily anchor on 
 fishing ground, or otherwise loiter about it, to prevent it being 
 used as such, in all such cases, and a hundred others of like 
 nature which may be easily imagined, he will be liable for dam- 
 ages. For the right of navigation, though superior in navigable 
 waters, does not take away the right of fishery.' Thus where the 
 master of a vessel knowingly, and without necessity, or for reason- 
 able commercial purposes, anchored his vessel within the limits of 
 the plaintiff's fishery in the Potomac, so as to interrupt the same, 
 he made himself liable for damages. And if, under the same state 
 of facts, he remained on such ground unnecessarily, he became 
 liable for the injury he caused to the fishery/ 
 
 Negligent failure on the part of one navigating public navigable 
 water to see and avoid a fishing net set therein, when he could 
 have done so without detriment to the prosecution of his voyage, 
 will render him liable for the injuries he occasions to the net. 
 Maliciousness or wantonness in running upon the net is not neces- 
 sary to a right of recovery. It is not negligence as matter of law 
 for the owner of a fishing net set in a public navigable water, from 
 which he is engaged in taking fish, to fail to warn an apj^roaching 
 vessel of the existence and situation of the net, so as to prevent a 
 
 'Harg. Law Tracts, 9-22; Swift, 341. 
 
 ^Stockton V. BalUmore & N. Y. R. Co. 32 Fed. Rep. 9, 1 Inters, Com, Rep. 
 
 411, 
 ^Post V. Munn, 4 K J. L. 61. 
 *Mason v. Mansfield, 4 Cranch, C. C. 580.
 
 Ohap. XXIIL] INJURY BY NEGLIGENT NAVIGATION. 53'.> 
 
 recovery from the owner of the vessel for injuries done by its run- 
 ning through the net. Wliethcr or not such faihire is negligence 
 is a question for the jury. The measure of damages, in an action 
 against a ship owner to recover damages for his running his ves- 
 sel upon and partially destroying a fishing net, is the cost of re- 
 pairing the net and the value of the labor recpiired to reset it, to- 
 gether with the value of its use during the time it is necessarily 
 idle; prospective profits which might have been realized from a 
 continued use of the net cannot be allowed as damages.' 
 
 In Post V. Munn^ 4 N. J. L. 61, and Cobb v. Bennett, 75 Pa. 
 326, it appeared that the persons in charge of the vessels knew 
 the location of the nets, and willfully, or, in other words, malic- 
 iously and wantonly, ran their vessels into them unnecessarily. Of 
 course, the owners of the vessels were held liable for the damages 
 to the nets. Tlie principle fairly deducible from these cases is, we 
 think, correctly stated in a head note to the Pennsylvania case, as 
 follows: "A vessel may hold her course in a navigable stream 
 without regard to a fisherman's net, if the master act without 
 wantonness or malice, and does no unnecessary damage." How 
 -can it reasonably be said that the master does no unnecessary dam- 
 age if he runs his vessel upon a net and injures it, when, by the 
 -exercise of a little forethought and care, he could have avoided 
 doing so without prejudice to the reasonable prosecution of his 
 voyage ? 
 
 \\\ Wright v. Mulvaney (Wis. K'ov. 5, 1S90), 9 L. E. A. SOT, 
 the negligent failure of the defendant and those operating his 
 steam-tug to see the net and avoid it, when it could have been 
 avoided without detriment to the prosecution of the voyage, was 
 held a sufficient basis for a recovery in the action. The proofs 
 show that the plaintiffs were taking fish from the pot when the 
 steam-tug ran through the net, but gave no warning, other than 
 that given by their presence there, to those in charge of the tug, 
 that the net lay across its path. It was claimed that this was con- 
 tributory negligence on the part of the plaintiffs, which defeats 
 the action. But the court declined to say as matter of law that it 
 was such negligence, but regarded the fact as a proper one to be 
 .submitted to the jury on the question of contributory negligence, 
 
 ' WrUjU V. Mulvaney (Wis, Nov. 5, 1890) 9 L. R. A. 807,
 
 540 IMPOSED DUTIES, PERSONAL. [Part II, 
 
 and the judge so submitted it in his charge. But where a seine 
 was put in a regular course of navigation, while a steamship was 
 approaching, and in such a part of the cliannel that, if the steam- 
 ship had deviated to go round it, she would have been in danger 
 of grounding, the seine was an obstruction to navigation, and the- 
 libel against the ship for destroying the seine and releasing the 
 fish was dismissed.' 
 
 Section 11.— Protection and Fropagation of Fish. 
 
 In Massachusetts and Maine, even in non-navigable streams, towns 
 have by immemorial use the right to regulate the taking of fish.' 
 
 A city ordinance requiring owners of stone quarries to fill the- 
 excavations up even with the surface of the ground, or to drain 
 the water therefrom, does not forbid an excavation made at a re- 
 mote period of time to be utilized for an ornamental pond or for 
 a fish or ice pond, fed and filled from a living source of pure water.* 
 
 Provisions for the protection of fish have been passed by various 
 States, making it a criminal offense to permit acid, lime or other 
 deleterious substances to be put in waters where game fish live,* 
 or sawdust or other refuse.* In other States the time, place, man- 
 ner and purpose of their capture are fixed, and the planting and 
 gathering of oysters, terrapins, lobsters, crabs and shrimps are regu- 
 lated by law." Statutes have also been passed by the United 
 
 ^The City of Baltimore, 5 Ben. 474. See also Cobb v. Bennett, 75 Pa. 326;. 
 
 Colchester v. Brooke, 7 Q. B. 389; Flanagan v. Philadelphia, A2 Pa. 219, 
 
 228; Leicis v Keeling, 1 Jones, L. 299; Moulton v. Libbey, 37 Me. 472;. 
 
 Davis V. Jenkins, 5 Jones, L. 290. 
 ^Com. V. Chapin, 5 Pick. 199; Nickerson v. Brackett. 10 Mass. 212; Preables- 
 
 V. Hannaford, 18 Me. lOG; Spear v. Robinson, 29 Me. 531; Proctor v. Wells, 
 
 103 Mass. 216; Bearce v. Fossett, 34 Me, 575; Eantham v. Anderson, 119 
 
 Mass. 526. 
 ^Rochester v. Simpson, 57 Hun, 36. 
 '^State V. American Foreite Powder Mfg. Co. 50 N. J. L. 75, 9 Cent. Rep. 
 
 495. 
 «Wis. Stat. 1887, chap. 490, p. 545; Cal. Stat. 1889, chap. 65, p. 61; Nev. 
 
 Stat. 1889, chap. 15, p. 24; Kan. Stat. 1889, chap. 149, p. 208. 
 ^Clinton v. Buell, 55 Conn. 263, 5 New Eng. Rep. 233; Peojjle v. Kirsch, 67 
 
 Mich. 539; Ga. Acts 1886-87, No. 170, p. 99; Va. Act April 12, 1887; 
 
 Acts Ex. L. Sess. chap. 209, p. 285; Md. Laws 1888, chap. 505, p. 792, 
 
 chap. 513, p. 807, chap. 433; Del. Laws 1889, chap. 560, p. 682, chap. 
 
 565, p. 688; Ala. Acts 1886-87, No. 86, p. 133; Fla. Acts 1887, chap, 
 
 3754, No. 74, p. 139, chap. 3759, No. 79, p. 142; Tenn. Acts 1887, chap. 
 
 143, p. 246; Col. Acts 1889, p. 168; Cal. Acts 1889, chap. 65, p. 61; Neb. 
 
 Stat. 1887. chap. 107, p. 662; 111. Laws 1889, p. 103; Pa. Laws 1889, No.
 
 ■Chap. XXIII.] STATUTES FOR THE PRESERVATIOX OF GAME. 54:1 
 
 States.* Fish coininissions liave general!}' also been establishod 
 for the pro]>ag-ation and protection of fish." and this protection has 
 been extended to waters not navigable.' 
 
 Section "J^.— Statutes for the Preservation of Game. 
 
 Statutes in ahnost every State in the Union may be found en- 
 acted for the preservation of game. The text-writers, in treating 
 of the power to legislate on this subject, place it under the police 
 power inherent in each State. Tiedeman * says: " It is a very com- 
 mon pohce regulation, to be found in every State, to prohiljit the 
 hunting and killing of birds and other wild animals in certain sea- 
 sons of the year, the object of the regulation being the preserva- 
 tion of these animals from complete extermination, by providing 
 for them a period of rest and safety, in which they may procreate 
 
 242, p. 267: Tex. Gen. Laws 1887, chap. 34, p. 24, chap. Ill, p. 103; 
 Vt. Stat. 1884, No. 73, p. 888, No. 128, p. 135; Utah Laws 1888, chap. 
 37, p. 78; Wyo. Laws 1888, chap. 54, p. 97; N. H. Laws 1889, chap. 85, 
 p. 100; N. Y. Laws 1871, chap. 6b9, 1879, chap. 384; Ahrams v. John- 
 son, 45 Hun, 591; Mass. Pub. Stat. chap. 91. i:^ 27; Acts 1888. chap. 331, 
 p. 267, 1889, chap. 108. p. 66, chap. 497, p. 188; Com. v. Richardson, 142 
 Mass. 71,2 New Eng. Rep. 153; State v. Turnbnll, 78 Me. 392, 3 New 
 Eng. Rep. 45; Thompson v. Smith, 79 Me. 160, 4 New Encr. Rep. 140; 
 State V. Bennett, 79 Me. 55, 3 New Eng. Rep. 616; State v. Trefethen (Me. 
 Feb. 7, 1887) 3 New Eng. Rep. 842; Me. Pub. Laws 1889, chap. 292, p. 258; 
 State V. Adams, 78 Me. 486, 3 New Eng. Rep. 243; Me. Laws 1887, chap. 96, 
 p. 660; Com. v. Barber, 143 Mass. 560. 3 New Eng. Rep. 901 ; State v. Or i fin, 
 89 Mo. 49, 4 West. Rep. 639; Packardv. Ryder, 144 Mass. 440, 4 New Eng. 
 Rep. 245; Post v. Kreischer, 103 N. Y. 110, 4 Cent. Rep. 219; N. Y. Laws 
 1887, chap. 530, p. 663, chap. 584, p. 797, 1888, chap. 526, p. 818, chap. 
 491, p. 783; State v. Burdick, 15 R. I. 239, 1 New Eng. Rep. 870; Clinton v. 
 Buell, 55 Conn. 263, 5 New Eng. Rep. 233; Abrams v. Hempstead Auditors, 
 45 Hun, 272; Sutter v. VanDerveer, 47 Hun, 366; Com. v. Eliot, 146 Mass. 
 5, 5 New Eng. Rep. 541; Purcell v. Conrad, 84 Va. 557; Hurst v. Dulanrj, 
 84 Va. 701; Ohio Gen. Laws 1888, p. 157; State v. Towle, 80 lAIe. 349, 6 
 New Eng. Rep. 460; State v. Craig, 80 Me. 85, 6 New Eng. Rep. 160; 
 Jones V. State, 08 Md. 613; Ind. Laws 1889, chap. 239, p. 449; Wis. Acts 
 1889, chap. 13. pp. 371, 443, 465, 486; Ark. Acts 1889, ciiap. 689, p. 84; New 
 Mex. Acts 18S9, chap. 53, p. 109; Idaho Gen. Laws 1889, p. 50; Mont. 
 Laws 1889, No. 9; ReaY. Hampton, 101 N. C. 51; People v. Hazen, .53 
 Hun. 370; Latcton v. Steele, 119 N. Y. 220, 7 L. R. A. 134; Kane v. State, 
 70 Md. 546; Morgan v. Naqodish, 40 La. Ann. 246; Hurst v. Dulany, 84 
 Va. 701; Clarke v. Providence. 16 R. I. — . 
 
 *24 U. S. Stat, at L. chap. 288, p. 434; Act March 2, 1889. 
 
 -«0r. Laws 1887, p. 37; Minn. Gen. Laws 1887, chap. 143, p. 241; 25 U. S. 
 Stat, at L. chap. 1, p. 1; N. J. Laws 1889, chap. 175; Md. Laws 1888, 
 chap. 497, p. 783; R. I. Pub. Laws 1889, chap. 765, p. 68; Mont. Laws 
 1889, No. 3. 
 
 ^Weller v. Snover, 42 N. J. L. 341; Haney v. Compton, 30 N. J. L. 507. 
 
 ''Lim. Pol. Powers, § 122/, chap. 10, p. 140.
 
 542 IMPOSED DUTIES, PERSONAL. [Part IT. 
 
 and rear their young. The animals are those which are adapted 
 to consumption as food, and their preservation is a matter of pub- 
 lic interest. The constitutionality of such legislation cannot be 
 questioned." 
 
 In Phelps V. Hacey, 60 N. Y. 10, the power of the State to- 
 legislate for the preservation of game was called in question, and 
 in deciding the case the court said: " The protection and preser- 
 vation of game has been secured by law in all civilized countries, 
 and may be justified on many grounds, one of which is for pur- 
 poses of food." " The means best adapted to this end are for the 
 Legislature to determine, and courts cannot review its discretion. 
 If the regulations operate in any respect unjustly or oppressively,, 
 the proper remedy must be applied by that bod3\" * 
 
 In Magner v. People, 97 111. 333, the validity of the Game Law 
 of 1879 was before the court, and it was then said: " The owner- 
 ship being in the j)eople of the State, — the repository of the sov- 
 ereign authority, — and no individual having any property righta 
 to be affected, it necessarily results that the Legislature, as the rep- 
 resentative of the people of the State, may withhold or grant to- 
 individuals the right to hunt and kill game, or qualify and restrict 
 it, as in the opinion of its members will best subserve the public 
 welfare." 
 
 The claim has been made that where quail have been killed the 
 dead animals become property, and the taker becomes the absolute 
 owner of such property, and that an Act to prevent a sale, or 
 transportation for sale, within the State, would be an interfer- 
 ence with private right amounting to a destruction of the right 
 of property without due process of law. The fallacy of the po- 
 sition consists in the supposition that the person who may kill 
 quail has an absolute property in the dead animals. In the Mag- 
 ner Case, supra, it was held that no one had a property in animals 
 and fowls denominated " game." The ownership was in the peo- 
 ple of the State. This being so, it necessarily follows that th& 
 Legislature had the right to permit persons to kill or take game 
 upon such terms and conditions as its wisdom might dictate, and 
 that the person killing game might have such property interest in 
 it, and such only, as the Legislature might confer. The Legis- 
 1 See also Allen v. Wyckoff, 48 N. J. L. 93, 2 Ceat. Rep. 213.
 
 Chap. XXIir.] STATUTES FOR THE PRESERVATION OF GAME. 545 
 
 lature in tlie State has never conferred an absolute property in 
 quail upon the person wlio nii<i;lit kill the same.' The killing of 
 quail during the months of October and ^S^oveniber was permitted, 
 not for sale, not to go upon the market as an article of commerce, 
 but for the mere use of the person who killed the birds. The 
 person killing quail under this Statute has but a qualified property 
 in the birds after they are killed. He may consume them. If a 
 trespasser should take them from him, he might maintain an ap- 
 propriate action to regain the possession. But the law which au- 
 thorized him to kill the quail has withheld the right to sell, or the 
 right to slii]) for the purpose of sale; and, when such person un- 
 dertakes to ship for sale, he is undertaking to assert a right not 
 conferred by law. The Act, therefore, does not destroy a right 
 of property, because no such right exists. Section 2 of the Act 
 does not prohibit absolutely the transportation of quail which have 
 been killed in the State, but only transportation by persons, cor- 
 porations and carriers knowing the same to have been sold, or 
 knowing the}' were to be sold or offered for sale. If the Legis- 
 lature of the State thought that a statute preventing a citizen from 
 killing quail for sale in the market, and imposing a penalty on a 
 common carrier for shipping or transporting for sale, would result 
 in protecting the game in the State, no valid reason exists why a. 
 statute of that character might not be enacted. The nature and 
 character of the legislation was a matter resting solely with the 
 Legislature; and so long as no constitutional right of the citizen 
 has been infringed upon, the Statute must be sustained.' 
 
 ' See upon the privilege of hunting and property in game, Pierson v. Post, 
 3 Caines, 175; Buster v. JS^ewkirk, 20 Johns. 75. See also Sutton\. Mooch/, 
 1 Ld. Ravm. 250; Lonsdale v. Rigq, 11 Exch. 654; Eiggv. Lonsdale, 1 Hurl. 
 & N. 933'; Blades v. Hi(/gs, 12 C. B. N. S. 501. 13 C. B. N. S. 844, 11 II. 
 L. Cas. 621, 20 C. B. N. S. 214; Churchward v. Studdy, 14 East, 249; 
 McConico v. Singleton, 2 Treadw. 244; Broughton v. Singleton, 2 Nott & 
 McC. 338; Paul v. Summerhai/es, L. R. 4 Q. B. Div. 9; Fripp v. Hasell. 
 1 Strobh. L. 173; Glenn v. Kays, 1 111. App. 479; Deane v. Clayton, 7" 
 Taunt. 489; Gundry v. Felt, 1 T. R. 334, 337; Schulte, Aq. Rights, 8. 
 
 ^American Express Co. v. People, 133 111. 649, 9 L. R. A. 138.
 
 CHAPTER XXIY. 
 
 USE OF RIVERS; MILL OWNERS; BOOM COMPANIES, WHARVES. 
 
 See. 73. Upper and Loioer Mill Oioners. — Negligence. 
 Sec. 74. Floatage of Logs. — Negligence. 
 
 a. Boom Companies. — Duties and Liabilities. 
 
 b. Compiensation for Driving Logs. 
 
 c. Intermingling and Confusion of Logs. 
 Sec. 75. Wharfage and Wharves. 
 
 a. Unlaivful Interference with Approach to Wharf. 
 
 b. Wharf Rights. — Public and Private Landings. 
 
 c. Liability of Wharf Ot07ier or Occupier. 
 
 d. Wharfage Fees and Charges. 
 
 Section IZ.— Upper and Lower Mill Owners.— Xei- 
 
 ligence. 
 
 The law as to surface streams, though peculiar, has been so fre- 
 quently considered and so carefully and fully adjudicated, that its 
 controlling principles are readily ascertained. One of its settled 
 maxims is '■''Exjure naturm aqua c^i7'rit et debet currere, utcur- 
 7'ere solebat^'' and this is declared by Kent to be the settled Ian. 
 gnage of the law.* In this the principal writers and authorities 
 concur.^ 
 
 Another maxim flowing from the one above stated is that the 
 owner of the bed of a stream does not own the water, but only has 
 a mere right to its use. He has a mere usufruct. He cannot de- 
 tain it so as to deprive the owner below of its use,' as one mill 
 owner on the stream has the same right as another to its reasonable 
 enjoyment, unless one has acquired a superior right by grant or 
 prescription. As between two mill owners, the question some- 
 times arises as to the reasonable use or detention of the water by 
 the upper mill. As each riparian owner can only use the water 
 
 '3 Kent, Com. (4th ed.) 439. 
 
 ^Tyler v. Wilkinson, 4 Mason, 400. 
 
 ^WareY. J.;fe?i, 140 Mass. 513, 1 New Eng. Rep. 733; Mason v. Eoyle, 56 
 
 Conn. 255, 6 New Eng. Rep. 629; Caldwell v. Sanderson, 69 Wis. 52; 
 
 Whitney v. Wheeler Cotton Mills, 151 Mass. 396, 7 L. R. A. 613; Smith v. 
 
 Rochester, 93 N. Y. 473; Merritt v. Brinkerhoff, 17 Johns. 306.
 
 Oliap. XXIV.] UPPER AlfD LOWER MILL OWNERS. 54:5 
 
 and does not own it, it follows that each as against the other must 
 use it reasonably. If he do otherwise and detain it unreasonably 
 long to the injury of the owner below, an action lies.' 
 
 Although one who is in ownership and possession of a mill site 
 has acquired, under the Statute of Limitations, a right to use 
 the water in the future, as he has in time past, notwithstanding 
 these rights, his duties and liabilities may be greatly increased by 
 other persons erecting mills on the same stream, for no priority of 
 occupation or use of the water by a mill owner upon a stream? 
 within the limits of his own estate, affects the right of a riparian 
 proprietor above him to erect and operate a mill in a suitable man- 
 ner on his own land, unless the prior occupier has obtained by 
 prescription the riglit to use the stream and back the water on the 
 land of the owner above hini.* 
 
 But the owner of land lying upon both sides of a natural stream 
 of water may lawfully erect a dam across the stream, to such a 
 height that in ordinary stages of the water it will not throw water 
 back upon the wheels of an ancient mill above, although in conse- 
 quence of the erection of the dam, the ice, when it breaks up in 
 the spring, becomes packed together above the dam, and the water 
 is thereby set back so as to flood the wheels to a greater height and 
 for a longer time than it has done before at that season. Although 
 he who first erects his dam acquires by statute, in many of the 
 States, a title to the use of the water prior and superior to all oth- 
 ers, and a right to maintain his dam against all proprietors of lands 
 both above and below his own," yet this right is not so absolute 
 as to give him the control of the whole stream or deprive others 
 of a reasonable use. If the dam does not injure other riparian 
 owners at the ordinary height of the water, for which the owner 
 of the dam would be as responsible as for overflowing the banks,* 
 
 ^Woodin V. Wentworth, 51 Mich. 278; Burk v. Simonson, 104 Ind. 173, 1 
 
 West. Rep. 190; Pixley v. Clark, 35 N. Y. 520. 
 'Oibson V. Fischer, 68 Iowa, 29; Pennsylvania Coal Co. v. Sanderson, 113 Pa. 
 
 126, 4 Cent. Rep. 483. 
 ^Cary v. Daniels, 8 Met. 466; Van Bergan v. Van Bergan, 3 Johns. Ch. 282, 
 
 1 N. Y. Ch. L. ed. 619. 
 *Brown v. Boicen, 30 N. Y. 519; Russell v. Scott, 9 Cow. 279; Monroe v. 
 
 Gate, ^^8 'i>lfi. '^Q'6; Great Falls Co. v. Worster, 15 N. H. 460; Cotclesv. 
 
 Kidder, 24 N. H. 364; Hutchinson v. Granger, 13 Vt. 386; Stout v. Mc- 
 
 Adams, 3 111. 67; Dickson v. Burnham, 14 U. C. Ch. 594; Saunders v. 
 
 Newman, 1 Barn. & Aid. 258. 
 
 35
 
 54:(i IMPOSED DUTIES, PERSONAL. [Part II. 
 
 such owner is not responsible for natural causes over which he has 
 no control.' Nor can one owning a suitable place for a mill site 
 be deprived of it because someone else has wrongfully interfered 
 witli the stream above him, unless the interference has continued 
 for such length of time as to bar a suit or indicate acquiescence.* 
 Before such erections are made, if the owner injure no person 
 above or below him, he may raise the water to any height he 
 pleases and may suffer his dam to decay till the water crushes 
 it and goes off in a body ; but after erections have been made be- 
 low on the same stream, the owner cannot lawfully raise his dam 
 above its usual height so as to lessen the flow of water to the 
 erections below, nor suffer his dam to decay, break down and let 
 off all the water at once, to the injury of the lower proprietor. 
 The owner is subject to the maxim, " Sic utere tuo ut alienum 
 non IcedasP To comply wdth this requisition of the common law, 
 it is the duty of the owner to use ordinary care and diligence in 
 making repairs to his dam, or in drawing off the water from his 
 pond, to prevent injury to the low^er proprietor. If he does not 
 use this care and diligence he is guilty of negligence, and liable 
 for consequential damages, although he is not responsible for in- 
 evitable accident.' Thus, where defendant could, by the opening 
 of the floodgates of his dam, have avoided the injury caused by 
 accumulated mud, etc., raising the water so as to interfere with 
 the working capacity of plaintiff's mill above, he is liable for such 
 damages, on refusal to open the gates and let the mud pass, al- 
 though the accumulation of the mud was caused by the removal 
 of a dam by the plaintiff to make an improvement.* A common- 
 law action will lie for damages resulting from the negligent or 
 improper construction or maintenance of a dam jfnd reservoir, con- 
 structed under the provisions of a statute which authorizes the 
 dam upon payment of the damages resulting from the proper ex- 
 ercise of the authority given, and which provides that such dam- 
 ages are to be recovered by petition filed for the purpose.^ 
 
 ^Monongahela Nav. Co. v. Coon, 6 Pa. 383; Smith v. Agawam Canal Co. 2 
 
 Allen, 355; China v. Southwick, 12 Me. 238. 
 ^Koopman v. Blodgett, 70 Mich. 610, 14 West. Rep. 909. 
 ^Lapham v. Curtis, 5 Vt. 371. 
 *Hardin v. Ledbetter, 103 N. 0. 90. 
 ^Aldworih v. Lynn (Mass. Jan. 9, 1891) 10 L. R. A. 210.
 
 Chap. XXIV.] UPPER AND LOWER MILL OWNERS. 547 
 
 It is only when the flow of water on one person's land is iden- 
 tified with that on his neighbor's by being traceable to it along a 
 distinct and defined course that the two proprietors can have nat- 
 ural relations with each other in respect to it, considered as the 
 subject of separate existence.* But owners of lots in the neigh- 
 borhood, but not upon the line, of a watercourse, although having 
 no interest in the original bed and no rights over it as riparian 
 owners, have a right to insist that it shall not be forced upon them, 
 and to treat the act of him by whom it is so foi'ced as a trespass." 
 
 When two mill owners whose mills are on the same stream, one 
 below the other, have a mutual interest in the upper dam, used as 
 a reservoir for storing water to propel the machinery of both 
 mills, they are, in the absence of any contract, under a mutual 
 duty to maintain the dam ; and a court of equity will compel each 
 to contribute to its maintenance in proportion to his relative inter- 
 est, so long as he exercises his right to the water.' 
 
 The owner or occupant of a water-power may lawfully pass 
 through his dam the entire volume of water naturally flowing in 
 the stream, but must not increase such volume to the injury of 
 adjoining lands;* and where the stream is flowing from a great 
 natural pond or lake he has no right to lower the outlet and draw 
 down the water in the pond or lake below its natural low-water 
 line.' 
 
 A riparian proprietor on a natural stream should use the water 
 so that those below may have the natural flow, subject to the nec- 
 essary interruptions," and in the absence of any stipulation or ac- 
 quired right to the contrary, the owner of an upper privilege may 
 make a reasonable use of the water and obstruct and accumulate 
 it in a reasonable way for the benefit of his own mill, whatever 
 may be the effect upon the owners below; ' as where he detained it 
 for two days and a night.* 
 
 ' ^Jones V. Wciterfihansen, 131 Pa. 63. 
 
 ^Webb V. Laird, 59 Vt. 108, 3 New Eng. Rep. 586. 
 
 *Boyington v. Squires, 71 Wis. 276. 
 
 ''Fernald v. Enox Woolen Co. 8a Me. 48, 7 L. R. A. 459. 
 
 '^ Ware v. Allen, 140 Mass. 513, 1 New Eng. Rep. 732; Burk v. fJimonson, 
 104 Ind. 173, 1 West. Rep. 190. 
 
 ''Springfield v. ILirri.% 4 Allen, 494; Robertson v. Miller, 40 Conu. 40; Merri- 
 field V. Worcexter, 110 Mass. 210, 219. 
 
 »Hoi/t V. Sterreit, 2 Watts, 327; Hartzall v. Sill, 13 Pa. 248.
 
 548 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 But he must not withhold or let down the water in an un- 
 reasonable manner;' and it has been held that any detention 
 of the waters of a navigable stream for the sole purpose of 
 securing a flood, in such a manner that it prevents a lower 
 owner from running his mills, is unreasonable and unlawful, and 
 entitles such owner to compensation for the resulting damages.* 
 But this strictness is hardly supported by the decisions, M'liich, 
 however, rule that where an upper mill owner detains water in his 
 reservoir long enough to operate his mill for five hours in dry 
 seasons, which occur for three months of the year, and thereby 
 causes lower mills to lie idle for five days at a time, such use of 
 the water is unreasonable and should be enjoined.^ But he has 
 the right to stop the natural flow long enough to fill up the pond 
 or reservoir created by his dam, and keep it full for the use of his 
 mill; and will be liable to the lower owner only when the use and 
 detention of the water are unreasonable.* 
 
 Although an upper riparian proprietor cannot be compelled to 
 hold back water for the benefit of the owners below him, yet he 
 cannot unreasonably interfere with the natural flow of the stream, 
 and send down a great deal more than the usual quantity at times, 
 and by so doing leave none for a long time afterwards to main- 
 tain the stream in its usual condition.^ So long as his dam stands, 
 he must vent the waters for mill owners below, so that each shall 
 have the natural flow of the stream, except so far as the flow is 
 modified by successive riparian proprietors.* 
 
 The rule must be kept in mind that the mill owners upon the 
 banks of a non-navigable stream are entitled to the practically un- 
 interrupted flow of its water in its accustomed channel.'' Still a 
 lower proprietor may set back the water in its natural state to the 
 boundary of the upper proprietor, but he cannot by a dam or log 
 
 ' Clapj) V. Herrick, 129 Mass. 292. 
 
 ^ Woodin V. Wenticorth, 57 Mich. 278. 
 
 ^Mason v. Hoi/le, 56 Conn. 255, 6 New Eng. Rep. 639. 
 
 * Caldwell v. Sanderson, 69 Wis. 53. 
 
 « Whitney v. Wheeler Cotton Mills, 151 Mass. 396, 7 L. R. A. 613. 
 
 ^Stevens v. Eelley (Me. Jan. 25, 1888) 5 New Eng. Rep. 871. 
 
 ''Smith V. Rochester, 92 N. Y. 473; Reid v. Gifford, Hopk. Ch. 416, 2 N. Y 
 
 Ch. L. ed. 470; Bi-own v. Bowen, 30 N. Y. 519; Pixlei/ v. Clark, 35 N. Y. 
 
 530; Varick v. Smith, 9 Paige, 137, 3 N. Y. Ch. L. ed. 659.
 
 Ciiap. XXIY.] FLOATAGE OF LOGS. — NEGLIGENCE. 549 
 
 jams so far set it back as to impede the running of his mills.' 
 Nor can an upper proprietor, meroly because at times the lower 
 proprietor partially obstructs the operation of his mills, entirely 
 abandon their use, and claim damages therefor, unless the obstruc- 
 tion renders their operation impossible with profit.' Nor does 
 the doctrine of contributory negligence apply to a case where 
 plaintiff in an action to recover for a nuisance is shown to have 
 maintained another nuisance.' 
 
 When two mill owners whose mills are on the same stream, one 
 . below the other, have a mutual interest in an upper dam used as 
 a reservoir for storing water to propel the machinery of both mills, 
 they are, in the absence of any contract, under a mutual duty to 
 maintain the dam, and a court of equity will compel each to con- 
 tribute to its maintenance in proportion to his relative interest, so 
 long as he exercises a right to the water." 
 
 Section 14:.— Floatage of Logs.—JfegUgence. 
 
 Each right to the use of flowing water for commercial purposes 
 is the offspring of advancing civilization, and neither can be exer- 
 cised without in some degree restraining the freedom of the oth- 
 ers. This conflict of rights must therefore be reconciled. The 
 common law in its wonderful adaptation to the vicissitudes of hu- 
 man affairs, and to promote the comfort and convenience of man, 
 as conveniences grow into necessities in the progress of society, 
 furnishes a solution of this difficulty by allowing the owner of the 
 soil, over which passes a floatable stream which is not technically 
 navigable, to build a dam across it and erect a mill thereon, pro- 
 vided he furnishes a convenient and suitable sluice or passageway 
 for the migration of fish and the use of the public by or through 
 his erections." To the common-law remedy have been added stat- 
 utory provisions." Even a grant to erect a mill-dam does not 
 
 • ^Richards v. Peters, 70 Mich. 286, 14 West. Rep. 628. 
 
 ^Randolph v. Bloomfield, 77 Iowa, 50. 
 
 *Webb V. Lrdrd, 59 Vt. 108, 3 New Eng. Rep. 586. 
 
 ^SUUe V. Franklin Fulls Co. 49 N. H. 240; Ilimlton v. Donegnll, 3 Ridi;. 
 t. Hardw. 2G7; Leconfield v. Lonsdale, h. K. 3 C. P. 657; Bardeit, v. Crock- 
 er, 10 Pick. 883. 
 
 ^Com. V. Tiffany, 119 Mass. 300; State v. Skolfield, 63 Me. 266; Shaw v. Craw- 
 ford, 10 Joiins. 236; Hayden v. Noyes, 5 Conn. 397; Uart v. Uill, 1 Wliart. 
 132; Badd v. Sip, 13 N. J. L. 348; WcUer v. Snover, 42 N. J. L. 341; Eu- 
 bank V. Fence, 5 Litt. (Ky.) 338.
 
 550 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 confer the riglit to impede navigation or the floatage of logs on a 
 public river,' and yet obstructions by dams to streams navigable 
 only for floatage of logs is not unlawful if the dams do not ma- 
 terially impair the value of the stream for floating purposes, but 
 provide a convenient and suitable passageway for logs." In this 
 way both these rights may be exercised without substantial preju- 
 dice or inconvenience. These views are sustained, not only by 
 reason, but by the decided weight of American aulhorities.^ 
 
 But mill owners who, at the time of constructing dams on anon- 
 navigable stream, which is, however, floatable for running logs at 
 certain seasons of the year, have made sufficient sluice-ways for 
 the passage of logs which the stream will float in its natural con- 
 dition, cannot afterwards be compelled to enlarge the capacity of 
 the sluice for floatage purposes.* 
 
 In Stration v. Currier, 81 Me. 497, 3 L. R. A. 809, the facts were 
 that in 188-i the defendants were the owners of a mill and dam 
 across the Piscataquis River, by which they were able to raise and 
 hold a sufiicient head of water to operate their mill, on their own 
 land at Abbot. They claimed that they had owned and possessed 
 their mill and dam, in the same condition that they were then in, 
 for more than twenty years. And as to ancient mill sites, a right 
 in fee is to be presumed in the mill privileges from an implied grant, 
 and with that the right to have a dam and the water of the stream.* 
 Such a right of prescrijDtion may be acquired.* The Piscataquis 
 River at that point was not navigable as a tidal river, but was 
 
 >Angell, Watercourses, §§ 254,486, 566, note 4.; Enoxv. Ohaloner, 43 Me. 150. 
 
 ^A. G. Conn. Co. v. Little Suamico Lumber & Mfg. Co. 74 Wis. 653. 
 
 ^Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641 ; Knox v. Chaloner, 42 Me. 
 150; Munson v. Hungerford, 6 Barb. 268; Burrows v. Oallup, 32 Conn. 
 501; Volk V. Eldred, 23 Wis. 410; Moore v. Sanborne, 2 Mich. 523; Wads- 
 worth V. S7nit7i, 11 Me. 278, 26 Am. Dec. 525; NeaderJiouser v. State, 38 
 Ind. 270; Veazie v. Dioinel, 50 Me. 479; People v. Piatt, 17 Johns. 195; 
 Curtis V. Eeesler, 14 Barb. 511; Hubbard v. Bell, 54 111. 112; Ireat v. Lord, 
 42 Me. 553; Walker v. ShciMrdson, 4 Wis. 486; Stuart v. Clark, 2 Swan 
 (Tenn.) 9; Weise v. Smith, 3 Or. 445; Felqerv. Robinson, Id. 458; Rhodes 
 V. Otis, 33 Ala. 578; Com. v. Chafin, 5 Pick. 199, 16 Am. Dec. 386; Gas 
 ion V. Mace, 33 W. Va. 14, 5 L. K. A. 392. 
 ■ *8tratton v. Currier, 81 Me. 497, 3L. R. A. 809, and note. 
 
 ^StougMon v. Baker, 4 Mass. 523, 538. 
 
 ^Nichols V. Boston, 98 Mass. 39, 43; Warren v. Spencer Water Co. 143 Mass. 
 155, 163, 3 New Eng. Rep. 502; Eastern R. Co. v. Allen, 135 Mass. 13; 
 Hittinger v. Fames, 131 Mass. 540, 546; Lddy v. Chase, 140 Mass. 471, 1 
 New Eng. Rep. 573.
 
 Chap. XXI Y.] FLOATAGE OF LOGS. — NEGLIGENCE. 551 
 
 floatable for the running of logs at certain seasons of the year. 
 The defendants claimed that when their dam was constructed it was 
 provided with a sluice proper and suihcient for passing all logs 
 that the river in its natural state, and as it then was, and had been 
 down to 18S4, could float. They said that prior to that time, by 
 reason of the natural character of the river above their dam, the 
 water fell so rapidly in the running season that compai-atively but 
 a small quantity of logs could be floated to and over their dam. 
 
 The plaintiffs do not seem to have controverted these facts, but 
 claimed, and introduced evidence to prove, that in 1S83 they ob- 
 tained a charter from the State to build reservoir dams and oth- 
 erwise improve the river above that place, and that under that 
 charter they had constructed two reservoir dams and otherwise 
 improved the condition of the river for floating logs above Ab- 
 bot ; that in the spring of ISSi they had in the river above Abbot 
 4,000,000 logs which they drove down the river that season ; and 
 that to enable them to drive that quantity they had their reservoir 
 dams full of water, which they used for that purpose. They 
 claimed that the sluice at the defendants' dam was not of sufficient 
 capacity to enable them to run that large quantity of logs over the 
 dam without unreasonable and unnecessary delay ; and that for 
 that reason the dam was a nuisance to them and caused them great 
 damage. 
 
 The real question in contention between the parties was, whether 
 the defendants were obliged to maintain a sluice over their dam 
 reasonable and proper for the use of the plaintiffs for floating the 
 large quantity of logs which they were able to float, by the water 
 which they had stored up by their reservoir dams, and which 
 they would not have been able to float by the natural and usual 
 condition of the river before their dams were constructed; or 
 whether they complied with the duty imposed upon them by 
 maintaining a sluice reasonable and proper for passing all the logs 
 which could be run in the river above their mill by the natural 
 condition of the water. Upon this point, the court charged the 
 jury, in substance, that the defendants had a right to construct 
 and maintain their dam upon their own land for the purpose of 
 raising a sufficient head of water to operate their mill; that the 
 stream being of suflicient capacity to float lumber, the public and
 
 552 IMPOSED DUTIES, PERSONAL. [Part !!► 
 
 the plaintiffs had a right to its use for that purpose, and that in 
 constructing and maintaining their dam, the defendants were 
 bound to provide reasonable and proper means for floating over 
 their dam the lumber which the stream was capable of floating, in 
 its natural condition; that they were not bound to provide, in 
 18S4, for the plaintiffs a sluice of additional capacity to enable 
 them to run the large quantity of logs which they were able to 
 float that year by the use of the large quantity of Avater which, 
 under their charter, by artificial means, they had held back and 
 stored for that purpose. 
 
 After the judge had given the jury his instructions upon this 
 point, at the request of the counsel for the plaintiffs he gave them 
 the further instruction : " That if the plaintiffs' logs could have 
 been driven, with the river in its natural state at any season of the 
 year, they were entitled to a reasonable passage when by reason 
 of the water stored they could float their logs over the defendants' 
 dam." The instructions were held correct. 
 
 The plaintiffs' contention was that if the defendants' dam, as it. 
 was constructed and had been maintained prior to 1884, furnished 
 reasonable and proper facilities for the exercise of the public right 
 of floating lumber in the natural condition of the river, the action 
 of the plaintiffs, under their charter, in increasing the capacity of 
 the river by removing natural obstructions and by artificial means- 
 had correspondingly increased the duties of the defendants ; so 
 that if prior to 1884 the dam was not a nuisance, and the defend- 
 ants could not have been made responsible, the plaintiffs by their 
 own artificial devices converted it into a nuisance to the public 
 right and changed the liability of the defendants. But the court 
 held this proposition unsound ; that the plaintiffs, by their charter, 
 could not require the defendants to do anything in removing nat- 
 ural obstructions in the bed of the river. They could not enter 
 upon the defendants' land to remove any obstructions to the dam- 
 age of the defendants without rendering just compensation, if 
 their charter in the exercise of the right of eminent domain by 
 the State had conferred upon them the right to do so. As they 
 could not take the defendants' property for the purpose of accom- 
 plishing their objects, under their charter, without just compensa- 
 tion, they could not by their acts under their charter increase tha
 
 Chap. XXIV.] FLOATAGE OF LOGS. — NEGLIGENCE. 553 
 
 obligations of the defendants, and require them to eonstmct a 
 larger sluice at an expense of $100 or §200, and thus substantially 
 take their property without compensation. 
 
 The relative rights of mill owners and of log owners, on floata- 
 ble streams, have recently been fully discussed and determined in 
 Pearson v. liolfe, 76 Me. 3S0, and in Foster v. Searspart Spool 
 <& Block Company, 79 Me. 508, 5 New Eng. Rep. 236. 
 
 In the last case it was claimed that the owner of a mill-dam 
 upon a floatable stream is obliged to provide a sluice through 
 which large and loosely constructed rafts of logs may be run with- 
 out being broken up. The court expressed a doubt whether the 
 construction of such a sluice is practicable. The evidence in that 
 case shows that, when one of these rafts enters a sluice, the more 
 rapid current of the water in the sluice draws the front logs away 
 from the rear logs ; and that, when the front logs reach the less 
 rapid current at the outlet of the sluice, their speed is suddenly 
 checked, and the rear logs, which are then passing through the 
 more rapid current of the sluice above, are driven against the 
 front logs with such force that they will either go under or over 
 them, and the raft be thus doubled up and broken to pieces. It 
 is doubtful whether it is jjracticable to construct a sluice that will 
 avoid these results. Unquestionably a lock may be so constructed. 
 But how an ordinary sluice, open at both ends, can be constructed 
 that will avoid them was not demonstrated. The water in the 
 sluice must inevitably flow more rapidly than the water in the 
 pond above, and when the front end of a long raft enters this 
 more rapid current, there w^as no method suggested which can 
 prevent its being pulled away from that portion of the raft which 
 still remains in the more sluggish water of the pond above. And 
 when the front end of the raft strikes the more sluggish curreiit 
 at the outlet of the sluice, and its speed is thereby suddenly 
 checked, nothing, it seems, can prevent the more rapidly mov- 
 ing logs behind from being driven under or over the logs in 
 front. Certainly such a sluice can be constructed, if constructed 
 at all, only at very great expense, — an expense out of all reasona- 
 ble proportion to any benefit that would be conferred upon the 
 log driver. 
 
 It has never been decided that such a responsibility rests upon
 
 554 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 llie mill owner. It has been decided that he must furnish the log 
 ■driver with reasonably convenient facilities for running his logs. 
 But it has never been decided that he is obliged to furnish locks 
 or sluices through which large and loosely constructed rafts of 
 logs can be run without being broken \\p or the logs displaced. 
 It would be unreasonable to require liiin to do so, — to do so would 
 place upon the mill owner a burden out of all proportion to any 
 benefit that would be conferred upon the log driver. 
 
 The proof in Foster v. Searsport Spool c& Block Company, su- 
 pra, is that, for the express purpose of accommodating log drivers, 
 the defendant had constructed in its dam a good and substantial 
 shiice, 30 feet and 4 inches wide, and 61 feet and 9 inches long, 
 the descent in its whole length being only 3 feet and 3 inches. 
 And it was admitted that the facilities thus provided were legally 
 sufficient for running unrafted logs. But the plaintiff undertook 
 to run his logs in rafts. These rafts were from 20 to 22 feet wide, 
 and from 100 to 115 feet long; and they were loosely con- 
 structed. Some of the logs had no fastenings, and were held in 
 place only by the logs by which they were surrounded. The re- 
 sult was that in their passage the rafts were more or less broken 
 up. The witnesses said that when the front logs entered the sluice 
 Ihey would be pulled away from the hind logs, and that when the 
 front logs reached the outlet of the sluice they would be driven to 
 the bottom of the river, and, their speed being thus suddenly 
 checked, the hind logs would be forced on top of them; and. in 
 this way the fastenings would be loosened, and the rafts more or 
 less broken up. And it was for the delay and the cost of recon- 
 structing the rafts that the plaintiffs claimed compensation from 
 the defendant. 
 
 In support of this claim it was contended that a log driver is 
 ■entitled to the same facilities for running iiis logs after the erec- 
 tion of a dam as he had before; that if, before the erection of a 
 •dam, he could run rafts of logs without their being broken up, he 
 is entitled to the same facilities after the dam is erected. Tliis 
 proposition in its full extent cannot be sustained. The right 
 to erect a dam upon a non-tidal stream is a clear statutory right. 
 The Legislature, in creating it, must have foreseen that its exer- 
 cise would to some extent necessarily interfere with the use of
 
 Chap. XXIY.] FLOATAGE OF LOGS. — NEGLIGENCE. 55') 
 
 €uch streams as highways. It is impossible to believe that the 
 Legislature intended that this newly-created right should be bur- 
 dened with the expensive — if not the impossible — obligation of 
 providing for log drivers the same facilities for running their logs 
 as they had before. If the Legislature had so intended, it would 
 have said so. The statutes impose no such obligation. They are 
 sileqt upon the subject. The courts have, by judicial construc- 
 tion, engrafted upon the statutes a condition in favor of log driv- 
 ers, like that recognized at common law favoring the passage of 
 fish,' to the extent of requiring mill owners to furnish reasonable 
 facilities for the passage of logs ; but they have never determined 
 that it would be reasonable to require them to furnish locks or 
 sluices through which large and loosely constructed rafts of logs 
 may be floated without being broken up. It is not meant to say 
 that it was not the duty of the mill owner to prepare a sluice 
 through which the rafts of logs could be run. What is meant, 
 the court in that ease say, is that the sluice prepared by the de- 
 fendant was all that could reasonably be required of it, and that it 
 was not responsible for the breaking up of the rafts. If lum- 
 bermen need to have a sluiceway capable of aiding and accommo- 
 dating the floating of lumber beyond what the stream would nat- 
 urally float and drive, they must obtain authority from the public 
 and give compensation for any improvement made ; or they must 
 buy it if the}'' use it as their own property. 
 
 Taking into consideration the situation of the mill, the loca- 
 tion, and all the surrounding circumstances ; taking into consider- 
 ation the burden of the mill owners, and taking into consideration 
 the necessities of the log drivers, — the question is always, Did the 
 mill owners furnish a reasonably convenient and suitable passage 
 for logs on the river in its natural state, at a drivable pitch ? If 
 they did that, then they were bound to do no more and they are 
 not liable to the log drivers. If the log drivers store the water in 
 a reservoir above, the}'^ own it, and they have a right to let it down 
 the stream and to run their logs with it, and to require the facili- 
 ties of the mill owners — that is, a sluice such as they would be 
 required to furnish for the running of the river in its natural 
 state, in a drivable pitch. 
 
 ^State V. Franklin Falls Co. 49 N. H. 240.
 
 556 IMPOSED DUTIES, PEKSONAL. [Part II. 
 
 The right to raft logs down the stream does not involve the 
 right of booming them upon private property, for safe-keeping and 
 storage, an^^ more than the right to travel a highway justifies the 
 leaving of wagons standing indefinitely in front of private dwell- 
 ings or stores.' Nor does the right to float logs confer the right 
 to run them upon adjacent lands or cause the water to overflow to 
 the injury of the shore owner,^ One who selects a portion of a 
 floatable stream for storage of logs, and prevents another thereby 
 from entering there with a drive of logs from a tributary, is liable 
 for damages/ Where logs are driven in a navigable river in an 
 ordinarily prudent and skillful manner the owner is not liable for 
 damages which may result to the lands of the riparian owners/ 
 But a riparian owner having a mill upon a navigable stream may 
 himself, or may permit another to, appropriate the bank for the 
 purpose of receiving logs, and construct a log- way or other struc- 
 ture extending into the river, for the purpose of facilitating their 
 removal, thus appropriating a portion of it, even though his land 
 extends only to low-water mark, providing he does not interfere 
 with the public easement or right of way/ 
 
 a. Boom Companies.— Duties and Liahilities. 
 
 An Act authorizing the construction of a boom on the south side 
 of a stream, provided it shall not impede navigation, gives author- 
 ity to use the shore on that side as part of the inclosure, and to 
 erect in connection therewith such piers as are necessarj'' to com- 
 plete the inclosure on the other side, subject to the restriction a& 
 to impeding navigation/ 
 
 The duty of a river boom company in respect to logs is merely 
 
 to separate and turn them loose into the river and conduct them 
 
 to a certain point; and charges are legally made for maintaining- 
 
 booms as well as for services/ The rate of compensation for 
 
 ^Lorman v. Benson, 8 Mich. 18; OUon v. Merrill, 43 Wis. 213. 
 ^Haines v. Welch. 14 Or. 319; Uackstaak v. Kesliena Imp. Co. 66 Wis. 439; 
 Lilley v. Fletcher, 81 Ala. 234. 
 
 ^McPheters v. Moose River Log Driving Co. 78 Me. 329, 2 New Eng. Rep. 456. 
 
 '^Field V. Apple River Log Driving Co. 67 Wis. 569. 
 
 * Williamsharg Boom Co. v. Smith, 84 Ky. 372. 
 
 ^Powers' Appeal, 125 Pa. 175. 
 
 ''Mississippi & R. R. Boom Co. v. Prince, 34 Minn. 79.
 
 Chap. XXI Y.] FLOATAGE OF LOGS. — NEGLIGENCE. 557 
 
 driving intermingled logs is provided for generally by statute.' 
 Boom companies are not insurers of the logs collected b\' their 
 booms, nor are they liable for logs which escape by inevitable ac- 
 cident.' 
 
 A log owner, who, with full knowledge, consents to and acqui- 
 esces in an arrangement by which a coi'poration collects and se- 
 •cures lost or scattered logs on a public stream, and thereafter upon 
 demand turns them over to the owners of the marks upon them 
 upon payment of the prescribed charges, and who, from year to 
 year, suffers the scattered logs bearing his marks to be so gath- 
 ered up and disposed of, is bound by such regulations; and where 
 he accepts and receives as his own logs of his mark which he had 
 previously sold, or their equivalent in other logs turned out to 
 him by the corporation in pursuance of such regulations, and sells 
 and converts the same into money, he is liable to an action by the 
 true owners as for money received to their use.^ 
 
 A contract for the driving of logs, made in settlement of past 
 disputes and litigation between a timber owner and a logging 
 company having a monopoly of the logging business upon the 
 only streams available to such owner, by which the company 
 agrees to drive all logs of the owner not exceeding a certain 
 amount annually, for a stipulated annual sum, is not revocable at 
 pleasure, where its recitals show that it was to remain in force 
 until all the timber had been cut and the logs driven.^ 
 
 b. Compensation for Driving Logs. 
 
 In an action to recover the expense of running and driving de- 
 fendant's logs, where defendant might, by reasonable diligence 
 and skill, have cleared the stream of obstructions, plaintiff may 
 proceed to pick a way through for his logs to pass and recover the 
 expense of driving defendant's logs for that purpose.* 
 
 ^^QQ Beard v. Clarke, 35 Minn. 324; Chesley v. De Graff, 35 Minn. 415; 
 Walker v. Bean, 34 Minn. 437; Oreen v. Knife Falls Boom Co. 35 Minu. 
 155. 
 
 ^Broion v. SusqueJianna Boom Co. 109 Pa. 57. 1 Cent. Rep. 56; Pennsylvania 
 
 dh 0. Canal Co. v. Oraham, 63 Pa. 290. 
 ^Libby v. Johnson, 37 Minn. 220. 
 
 *Bobson V. Mississippi River Logging Co. 43 Fed. Rep. 364. 
 ^Butterjield v. Oilchrist, 63 Mich. 155, 5 West. Rep. 744.
 
 558 IMPOSED DUTIES, PERSONAL. [Part IL 
 
 A statute which empowers any log owner to drive logs belong- 
 ing to others, when intermingled with his own, is not invalid on 
 the ground that it abridges or impairs the general right of all per- 
 sons to the use of a river for driving their own logs.' 
 
 c. Intermingling and Confusion of Logs. 
 
 Floating logs distinctly marked are not subject to confusion or 
 commixture of goods in the sense implied in those terms in law ;. 
 but for their conversion into money knowingly and without right 
 a party is liable to the owner." Where two lots of logs of the 
 same quality and mark become intermingled without fault of 
 either party, each person will be entitled to his proportional part 
 of the whole lumber manufactured therefrom.^ 
 
 A person who, knowing of the obstruction of a stream by a jam 
 of logs, drives his rafts upon them without allowing the owners- 
 time to remove them, is guilty of contributory negligence which 
 will defeat a recovery for damages sustained by the loss of his 
 timber in attempting to pass the obstruction.* And the same 
 rule applies where there are dangerous structures over the stream. 
 Thus, where the statute authorizes the building of a bridge across- 
 a stream, if built so as not to obstruct or unreasonably imjDede 
 navigation, the floatage of logs must be with due and reasonable 
 regard to the rights of tlie bridge owner. If he provides sufficient 
 space and proper conveniences for the passage of logs, singly or 
 in rafts, the floatage must be conducted in such manner, as to- 
 numl^ers or condition of logs, as will suit the passageway. Fail- 
 ing in this, if injury results to the bridge, the owner will be enti- 
 tled to compensation therefor.^ 
 
 A bridge having a space of over 50 feet for the passage of log?,, 
 and guide booms to direct the floatage, was held not to conflict 
 with proper navigation of the river there ; and letting loose 3,500 
 or 4,000 logs on rising waters, to be precipitated against the bridge,. 
 
 1 Wisconsin E. L. D. Aaso. v. Comstock Lumber Go. 72 Wis. 464, 1 L. R. A. 
 
 717. 
 ^Goffy. Bminerd, 58 Vt. 468, 2 New Eng. Rep. 612. 
 ^Martin v. Mason, 78 Me. 452, 3 New Eng. Rep. 265. 
 marold V. Jones, 86 Ala. 274, 3 L. R. A. 40G. 
 ^Bucki V. Cone, 25 Fla. 1.
 
 Chap. XXIY.] WHARFAGE AND WHARVES. 550 
 
 was held to be negligence which, if resulting in the destruction of 
 the bridge, entitled the owner to damages from the negligent 
 party.' 
 
 Where a railroad company has been granted the right to build 
 a bridge over a navigable stream, the proper and necessary re})air 
 of such bridge without negligence cannot subject the company to 
 liability for damages caused thereby ; and injuries suffered by the 
 driving of piling in the making of such repairs, by a person raft- 
 ing the logs on the stream, is damnum absque injuria.* 
 
 Section 1^.— Wharfage and Wharves. 
 
 That an owner of land bounded by navigable waters possesses 
 important riparian rights by virtue of such ownership, is not open 
 to question.^ Riparian right is property, of which the owner can 
 be deprived only if necessary that it be taken for the public good, 
 upon due compensation.* A riparian proprietor whose land is 
 bounded by a navigable river has the right of access to the navi- 
 gable part of the river, and the right to make a landing, wharf 
 or pier for his own use or for the use of the public.^ He has an 
 exclusive right to the soil between high and low water mark, for 
 the purpose of erecting wharves and stores thereon.' He is at 
 liberty to construct and moor to his bank a floating wharf and 
 boathouse which is not an obstruction to navigation.'' There is 
 the same necessity for such erections on lakes as in the bays and 
 arms of the sea.' The right of a riparian proprietor upon navi- 
 gable waters to improve, reclaim and occupy the submerged lands 
 out to the point of navigability, although originally incident to 
 the riparian estate, may be separated therefrom and be transferred 
 to and enjoyed by persons having no interest in the original ripa- 
 rian estate.* But this right cannot be acquired by the public by 
 custom or prescription, nor does the doctrine of dedication by pa- 
 
 ^Bucki V. Cone, 25 Fla. 1. 
 
 ^Central Irust Co. v. Wabash. St. L. & P. R. Co. 32 Fed. Rep. 566. 
 
 ^*^St. Paul & P. R. Co. V. ScJmrmekr, 74 U. S. 7 Wall. 272, I'J L. ed. 74- 
 Yates V. Milwaukee, 77 U. S. 10 Wall. 497. 19 L. ed. 984. 
 
 *Ladies Seamen's Friend Soe. v. Ilalstead, 58 Conn. 144. 
 
 ''Booth V. Ratte, L. R. 15 App. Cas. 188. 
 
 ^Button V. Strong, 66 U. S. 1 Black, 23, 17 L. ed. 29. 
 
 ^Hanfordv. St. Paul&B. R. Co. 43 Minn. 104. 7 L. R. A. 723.
 
 560 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 rol of highways and public squares apply to public landings.' He 
 has the privilege of building a wharf out to such a depth of water 
 as will enable shi23S or vessels to touch thereat, and receive or dis- 
 charge freight, and may apply such frontage to any use not incon- 
 sistent with the rights of the public. He may reserve these rights 
 to himself M'hen he conveys away the land above high-water Jiiark 
 to which they pertain, or he ma,y grant them to others to enjoy, 
 but in subordination to the public right of navigation. Such 
 rights, however, are mere incorporeal hereditaments. 
 
 The land below high-water mark upon a navigable river, -which 
 is a tidal river at common law, and in New York, Connecticut 
 and Massachusetts," and which constitutes a part of its bed, be- 
 longs, according to some of the authorities, to the State in its sov- 
 ereign capacity, subject to the riparian rights of the owner of the 
 land above and adjacent thereto. The State, however, cannot sell 
 it, nor can the State control its use except to increase the facilities 
 for navigation and commerce. Nor can the riparian proprietor 
 grant such land, or any right thereto, except such right as he him- 
 self is entitled to enjoy. He can only grant the franchise as be- 
 fore suggested.^ Thus, where S., who owned a donation land 
 claim, bounded by high-water mark on the tide-waters of the Col- 
 umbia River, laid off a block in front of his claim, extending be- 
 yond low-water mark, and sold lots therein to the defendant, but 
 reserved in the deed of conveyance all the hereditaments, appur- 
 tenances, franchises and wharfing privileges, fronting on the 
 north of the northern boundary line thereof, which hereditaments, 
 appurtenances, etc., he subsequently granted to the plaintiff; and 
 the defendant, disregardiiig said reservation, built and erected 
 structures in the navigable waters of the river in front of the 
 northern boundary line of the lots purchased, — Held, that the 
 
 ^Pearsall v. Post, 20 Wend. Ill, 22 Wend. 425; Talbott v. Grace, 30 Ind. 
 389; State v. Wilson. 42 Me. 9; LittlefieM v. Maxwell, 31 Me. 134; Gardi- 
 ner V. Tisdale, 2 Wis. 153; People v. GunningUam, 1 Denio, 524; Graves 
 V. Shattuck, 35 N. H. 257; Gerrish v. Brown, 51 Me. 256, 263; Penny Pot 
 Landing, 16 Pa. 79. But s,eeAsketci v. Wynne, 7 Jones, L. 22; Kean v. 
 Stetson, 5 Pick. 492; Boston v. Riclmrdmn, 105 Mass. 351, 357; Gould, 
 Waters, 191; Brisbine v. St. Paul & 8. C. B. Co. 23 Minn. 113; Connehan v. 
 Ford, 9 Wis. 240; Grant v. Davenport, 18 Iowa, 179; Newportv. Taylor, 16 
 B. Mod. 699; Godfreys. Alton, 12111. BO-Mclntyrev. Storey, 80111. 127, 130. 
 
 ^Com. V. Chapin, 5 Pick. 199; Com. v. Charleston, 1 Pick. 186, note 1. 
 
 ^Case V. Loftus, 39 Fed. Rep. 730, 5 L. R. A. 684; Henry v. Newburyport, 
 149 Mass. 582, 5 L. R. A. 179.
 
 Chap. XXIV.] WHARFAGE AND WHARVES. 5G1 
 
 plaintiff had no such tangible interest in tlie hmd and water wliere 
 the structures were situated as would enable him to recover it in 
 an action for the I'ecoverj of the possesi^ion of real property.' 
 The private interest in submerged soil at the bottom of a river, 
 which hadbeen granted to a person by a State, is subject to the 
 paramount right of the public to use the river for navigation, and of 
 the United States, in the regulation of commerce, to erect thereon 
 such aids to navigation as are reasonably necessary ; and his right 
 to improve out into the river, until actually availed of, is subject 
 to the right of the United States to use the soil under the water 
 in aid of navigation, without his consent and without compensa- 
 tion." The compact between Vii'ginia and Maryland of 1785 
 secured to their citizens and those of the Disti-ict of Columbia 
 " the privilege of nuiking and carrying out wharves" on the shores 
 of the Potomac onl}' so far as they were "adjoining their lands.'" 
 The establishment of a dock or harbor line in pursuance of legis- 
 lative authority is to be construed as giving to the owners of the 
 upland the privilege of tilling in and building out to such line.^ 
 And where owners of upland, after the estal)lishment of a dock 
 line, adopted a survey and plan of improvement for the use and 
 occupation, to such line, of the submerged land abreast of the 
 upland owned by them, they had the right to transfer to othei- 
 parties the same rights which they had within the dock line, and 
 bind themselves and their grantees of the upland by appropriate 
 covenants against interference with the rights in the submerged 
 land thus transferred.^ A state statute may operate as a legislat- 
 ive grant where the title is in the public, of an interest in the soil 
 below low water, and confer the right to lot owners on a river to 
 build wharves.* 
 
 <i- Unlawful Interference with Approach to WJiarf. 
 
 The owner of a floating wharf and boathouse moored to the 
 shore of a river can maintain a private action for unauthorized 
 
 ^Parker v. West Coast Packiny Co. 17 Or. 510, 5 L. R. A. 61. 
 
 ^Hawkins Point Lightliouse Case, 39 Fed. Rep. 77. 
 
 ^Potomac Steamboat Co, v. Upper Potomac Steamboat Co. 109 U. S. G72, 27 L. 
 
 ed. 1070. 
 * '^MUler V. Mendenhall, 43 Minn. 95, 8 L. R. A. 89. 
 *Hamlin v. Pairpoint Mfg. Co. 141 Mass. 51, 2 New Eng. Rep. 143. 
 36
 
 5G2 IMPOSED DUTIES, PEKSONAL. [Part II. 
 
 interference with the flow and purity by deposits of sawdust from 
 mills in such quantity as to deprive him of the enjoyment of the 
 river and of his business of hiring and housing pleasure boats.* 
 In Breed v. Lynn, 126 Mass. 367, the owners of a wharf and 
 dock who had dredged out a channel from their dock to some ex- 
 tent over flats belonging to others, and beyond the limits of their 
 own ownership, which channel was injured and filled up by the 
 discharge of sewage from a common sewer into the dock, were 
 entitled to recover so far as the injury was within the limits of 
 their ownership, but not beyond. The fact that they had pre- 
 pared this channel on the lands of others gave them no special 
 right that it should be kept oj)en and clear, although its filling se- 
 riously interfered with access to their wharf. 
 
 b. Wharf Rights.— Public and Private Landings, 
 
 In Bainbridge v. Sherlock, 29 Ind. 364, it is said : "The river 
 being public, and its banks being private, it is not diflicult to dis- 
 cover the true foundation of those riparian rights, known as 
 'wharf rights.' It is essential to the successful prosecution of his 
 business that the navigator shall make frequent landings to lade 
 and unlade, to receive and discharge joassengers and to receive 
 supplies. But, except in case of some peril or emergency of nav- 
 igation, he cannot thus land without the consent of the riparian 
 owner, and, in return for the privilege of landing, a reasonable 
 compensation may be demanded. This is the origin of wharfage.'^ 
 
 Riparian owners have claimed and exercised the right to con- 
 struct wharves and landing places on navigable streams, from the 
 earliest settlement of this country, subject to the limitation that 
 the public easement or servitude is not impaired. The owner has 
 the same dominion and power to control such landing places as 
 any other private property, and to possess and use the same to the 
 exclusion of the public. The right to raft timber does not imply 
 or carry with it the right to deposit it upon private property pre- 
 paratory to being rafted. Campbell, «/., says : "The right to 
 raft logs down the stream does not involve the right of booming 
 them upon private property for safe keeping or storage, any more 
 
 ^Booth V. Ratte, L. R. 15 App. Cas. 188.
 
 Chap. XXIY,] WHARFAGE AND WHARVES. 503 
 
 than the right to travel a highway justifies the leaving of wagons 
 indefinitely in front of private dwellings or stores."* No one has 
 a common-law right to store or deposit logs or timber at a private 
 landing for the purpose of rafting. Piers or landing places, and 
 even wharves, may be private or puljlic, although the property 
 may be in an individual owner.' And the right to erect the same 
 must be understood as terminating at the point of navigability.' 
 The owner may have a right to the exclusive enjoyment of wharves 
 and permanent piers, or he may be under obligation to concede to 
 others the privilege of landing their goods or of mooring their 
 vessels there. A riparian proprietor may construct any one of 
 these improvements for his own exclusive use or benefit.* And 
 wharves and permanent piers constructed by the riparian pro- 
 prietor on the shores of navigable rivers, bays and arms of the 
 sea, or on the lakes, where they do not extend below low-water 
 mark, are not a nuisance, unless they are an obstruction to navi- 
 gation.' Nor can a city, by creating a merely artificial and imag- 
 inary dock line, deprive riparian owners of the right to avail them- 
 selves of the advantage of the navigable channel by building 
 wharves and docks to it.* The State may prescribe lines in the 
 harbor of a city beyond which piers, etc., may not be built by ri- 
 parian owners;' and in the case of a city having power by its 
 charter to maintain a breakwater, upon the erection of such break- 
 water and filling in of the space between it and the shore line, the 
 land thus reclaimed belongs to the city, and a wharf would be a 
 public one.* 
 
 Where a wharf is public, the owner is under obligations to con- 
 cede to others the privilege of landing their goods. If private, 
 he has the right to the exclusive use and enjoyment, or to pei-mit 
 such individuals to enjoy it as he sees proper. Whether a wharf 
 or landing is public or private depends upon the ownership of tlic 
 soil, the pui'poses for which it was built, the authority by which it 
 was erected, the uses to which it has been applied and the nature 
 and character of the structure. If the land on which it is con- 
 
 ^Lorman v. Benson, 8 Mich, 18. 
 
 s 3 4 iBatton V. Strong, 66 U. S. 1 Black, 23, 17 L. ed. 29. 
 
 ^Tatesv. Milwaukee, 77 U. S. 497, 19 L. ed. 984. 
 
 ' ^ State V. Illinois Cent. R. Co. 3o Fed. Rep. 730.
 
 564 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 structed is vested in the public, or is built by public authority on 
 land condemned, or if it be at the terminus of a public highway 
 and practically forms a part thereof, or has been dedicated by the 
 owner to the use of the public, it may be regarded as a public 
 wharf or landing.' The right to erect a landing on a navigable 
 stream having its foundation in the ownership of the land, when 
 erected by an individual at his own expense, it is private property.' 
 
 It is well settled that the public n?ay acquire an easement, — a 
 right to the use of such landing, — by dedication on the part of the 
 owner of the soil.^ But use by individuals, with the permission 
 of the owner, does not give the public the right to do the same 
 without his consent.* Use by the public with his permission, and 
 for his own emolument, for no number of years will amount to 
 dedication. 
 
 In Post V. Pearsall, 22 Wend. 425, after an elaborate consid- 
 eration of the question, it was held that the public have not the 
 right, against the will of the owner, to use and occupy the land 
 adjoining navigable waters as a public lauding and place of de- 
 posit of property in its transit to and from vessels navigating such 
 waters, although such user has been continued upwards of twenty 
 years with the knowledge of the owner. 
 
 In O'Neill V. Annett, 27 K. J. L. 290, the action was brought 
 to recover damages for the defendant's refusal to permit vessels 
 to discharge a cargo of coal upon his wharf. The declaration al- 
 leged that it was a public w^iarf, and the jury so found. The 
 wharf was built by defendant at his own expense more than 
 twenty years previously. A public turnpike passed or terminated 
 near the wharf, but it does not appear that it extended to the 
 landing, or that there was any connection between them, except 
 that the public passed and repassed from one to the other without 
 interruption. During the whole period of its existence, vessels 
 
 Wincinnati v. White, 31 U. S. 6 Pet. 431, 8 L. ed. 453; San Francisco, A. & 
 S. R. Co. V. Caldwell, 31 Cal. 385; Cook v. Burlington, 30 Iowa, 94, 36 
 Iowa, 357; SclLermerlwrn v. New York, 3 Edw. Ch. 119, 6 N. Y. Ch. L. ed. 
 594; Alves v. Henderson, 16 B. Mon. 152; Day v. Allender, 23 Md. 511; 
 Coolidge v. Learned, 8 Pick. 504; Oreen v. Chelsea, 24 Pick. 71; Kean v. 
 Stetson, 5 Pick. 492, 495. 
 
 ^T7ie Wharf Case, 3 Bland, Ch. 361. 
 
 ^Coolidge v. Learned, 8 Pick. 504; Day v. Allender, 33 Md. 511. 
 
 *mil V. Lord. 48 Me. 83, 97.
 
 Chap. XXIY.] WHARFAGE AND WnARVES. 505 
 
 had been in the habit of loading and unloading at the wharf, and 
 it had been used by persons in the vicinity as a place of deposit 
 for lumber, wood, brick and other materials, the owner being paid 
 for such use. It was ruled that the wharf was private property, 
 and that the consent of the owner must be obtained before the 
 public had a right to use it. It is said : " It is difficult to con- 
 ceive of evidence that could more clearly negative the idea of 
 dedication to public use, or more satisfactorily establish the fact 
 that the proprietor was using the property for his own private 
 emolument." 
 
 The objects for which a private landing may be held and 
 used may be public witliout affecting its private character. In 
 such case, there is an implied license to vessels navigating the 
 stream to use it for receiving and discharging freight and pas- 
 sengers, and also to all persons to occupy it for lawful and ac- 
 customed purposes ; but the owner may, at any time, revoke the 
 license as to the entire public, or withhold permission from par- 
 ticular vessels or persons.' 
 
 The fair inference is that a landing on a navigable river is in- 
 tended for the loading or unloading of the craft navigating the 
 river, and as the place of deposit of such freight as they usually 
 transport. The owner is authorized to prohibit the use of a land- 
 ing intended and applied to such purposes, for unusual and unac- 
 customed purposes, such as the storage and keeping of timber to 
 be rafted, which may obstruct free access to and from the ves- 
 sels." 
 
 When a grant from the State, of land under water, confers no 
 other right than to make a wharf for the purpose of promoting 
 the commerce of the State and to collect tolls for its use, subject 
 to the regulation of the Legislature, the wharf erected thereunder 
 must be open to public use, and the courts will not aid the grantee 
 in restricting its use to particular persons or purposes.* A pub- 
 lic pier in a city is a part and parcel of its public streets, and tlio 
 public have a right to enter upon the pier in the same manner as 
 upon public streets.* 
 
 ^Sicords V. Edgar, 59 N. Y. 28; Steele v. Sullivan, 70 Ala. 589. 
 
 Womptonv. Hawkins (Ala. June 17. 1890) 9 L. R. A. 387. 
 
 ^Harper v. Williams, 110 N. Y. 200, 13 Cent. Rep. 433. 
 
 *Gluckv. Eidgewood Ice Co. (Sup. Ct. March 28, 1890) 31 N. Y. S. R. 99.
 
 566 IMPOSED DUTIES, PERSONAL. [Part IL 
 
 » 
 
 c. Liability of Wharf Owner or Occupier. 
 
 The liability of the wharf owner or lessee for negligence caus- 
 ing injury has been heretofore stated.' It is the duty of the 
 owner or occupier of a wharf, so long as he maintains it, to make 
 such inspection as its construction and situation may render nec- 
 essary to keep it and the approaches to it by land or water in safe 
 condition. The owner of a wharf is liable for damages caused to 
 a vessel by concealed obstructions which he might have ascertained 
 by reasonable diligence.'' A boulder TfV feet below the surface at 
 low water, within 6 to 8 feet from a bulkhead where a boat draw- 
 ing between 8 and 9 feet is moored, is such an obstruction as the 
 owner of the wharf could discover by the exercise of reason- 
 able care.^ Nor may objects project from the wharf to interrupt 
 or endanger navigation.* 
 
 A dock owner is liable to a vessel owner for injury to a vessel 
 through a defect in the bottom of a stream at the place where 
 moored, and known to the former but not known or communicated 
 to the latter.^ 
 
 Where one entitled to use a dock suffers injury, his right of ac- 
 tion does not depend uj)on whether the channel was properly 
 opened or has been permitted to become subsequently obstructed.* 
 The rule of liability is not the same in all cases, and the correct- 
 ness of instructions as to the measure of care due to one whose 
 rafts had been carried away from a wharf cannot be determined 
 
 »See ante, p. 19, note 2, pp. 48, 49, 57, 67. 
 
 ^aRourke v. Peck, 29 Fed. Rep. 223: Buckhee v. Brown, 21 Wend. 110; Bar- 
 ber V. Ahendroth, 102 N. Y. 406. 3 Cent. Rep. 637; Garleton v. Franconia 
 Iron & Steel Co. 99 Mass. 216; Parnaby v. Lancaster Canal Co. 11 Ad. & 
 El. 223; Mersey Dock v. Oibbs, L. R. 1 H. L. Cas. 93; Gibbs v. Liverpool 
 Dock, 3 Hurl. & N. 164. 
 
 'Manhattan Transp. Co. v. Mayor, 37 Fed. Rep. 160. See Carleton v. Fran- 
 conia Iron & Steel Co. 99 Mass. 216; Exchange Fire Ins. Co. v. Delaware 
 Canal Co. 10 Bosw. 180; Johnson v. Belden, 47 N. Y. 130; Curling v. 
 Wood, 16 Mees. & W. 628; Pittsburg y. Wier, 22 Pa. 54; Sweeny v. Old Colony 
 i&N. R. Co. 10 Allen, 3G8; Elliott v. Pray, Id. 378; Weitner v. Delaware 
 Canal Co. 4 Robt. 234; Nelson v. Phcenix Gliemical Works, 7 Ben. 37; Wen- 
 dell V. Baxter, 12 Gray, 494; Seaman v. New York, 80 N. Y. 239; 
 Parnaby v. Lancaster Canal Co. 11 Ad. & El. 223; Borden Min. Co. v. 
 Barry, 17 Md. 419. 
 
 *Dalton V. Denton, 1 C. B. N. S. 672. 
 
 ^Barber v. Abendroth, 102 N. Y. 406, 3 Cent. Rep. 637. 
 
 ^Thompson v. North Eastern R. Co. 31 L. J. N. S. Q. B. 194; Bartlett v. Baker, 
 3 Hurl. & C. 153; White v. Phillips, 15 C. B. N. S. 245.
 
 Chap. XXIY.] WHARFAGE AND WHARVES. 5G7 
 
 where it is not shown whether lie was a navigator of tlie river on 
 which the wharf was situated, or a manufacturer using the wharf 
 mei'elj for storage as a lessee.' Occupants of a wharf, having 
 general possession and control, are under obligations to keep the 
 premises in reasonably safe condition for the use of all persons 
 who may lawfully resort there ; and any person lawfully going 
 there for the transaction of business to which the premises are ap- 
 propriated has a right to assume that the structure itself and the 
 access to it are in a reasonably safe condition.' This duty rests 
 upon the owners of docks, as well as upon those who occupy them, 
 to exercise reasonal)le care to see that they are sufficient for the 
 use of vessels.* They are not held to guarantee such condition, 
 however;* and a scow platform designed to be moored alongside 
 a wharf so that horses with carts could be driven over it from the 
 wharf, with dirt or other refuse to be dumped into boats, and 
 which was mainly stationary and rarely moved, though capable of 
 being towed from one wharf to another, and having no motive 
 power, rudder or sails, — is not a vessel within the meaning of the 
 maritime law.^ A wharf boat is part of the wharf itself." Where 
 the owner of a wharf leases it to a tenant, and it is, at the time of 
 leasing, not in a safe condition, and the owner well knew, or could, 
 l)y reasonable diligence, have known of such condition, and one 
 lawfully upon it is subsequently injured by reason of such condi- 
 tion, the owner is liable for the injury.' 
 
 The fact that the door and fastenings were in good repair when 
 the right to collect wharfage and cranage at a pier was assigned, 
 will not relieve the assignor of the duty to keep the wharf in safe 
 condition.* 
 
 ^Crawford Y. AllegTieny (Pa. Jan. 7, 1889) 23 W. N. C. 141. 
 
 ^O'Rourke v. Peck, 40 Fed. Rep. 907; Smith v. London & St. E. Bockx Co. 
 L. R. 3 C. P. 326; Pittsburg v. Qrier, 23 Pa. 54; Thompson v. North East- 
 ern R. Co. 31 L. J. N. S. Q. B. 194. 
 
 ^Manley v. St. Helen's Canal & R. Co. 2 Hurl. & N. 840; Exchange Fire Ins. 
 Co. V. Delaware & L. Canal Co. 10 Bosw. 180; Smith v. London & St. K. 
 Docks Co. L. R. 3 C. P. 326; White v. France'., L. R. 2 C. P. Div. 308. 
 
 ^Exchange Ins. Co. v. Delaware & L. Canal Co. 10 Bosw. 180. 
 
 ^Raddiman v. A Scow Platform, 38 Fed. Rep. 158. 
 
 ^Davis V. Reamer, 104 Ind. 318, 3 West. Rep. 317. 
 
 ''Albert v. State, 66 Md. 325, 6 Cent. Rep. 447; Leary v. Woodruff, 4 Hun, 99; 
 Campbell v. Portland Sugar Co. 02 >Ie. 552. 
 
 ^Cleary v. Oceanic Steam Nav. Co. 40 Fed. Rt-p. 908.
 
 568 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 One who leases a public pier, and allows a hole to remain there- 
 in for a long period, is liable for an injury sustained by another 
 by falling through the hole;* but not to a trespasser, unless the 
 defect is a public nuisance." 
 
 A corporation having actual knowledge or the means which, if 
 properly exercised, would inform it of the defective condition 
 of the works under its charge, is liable to all persons lawfully 
 there for any injury which may result from its negligence in 
 omitting to make repairs.^ 
 
 So long as a wharf is accessible and open, it must be securely 
 kept, and notice of defects must be given, even before repairs are 
 attempted, if the danger is immediate, or the wharf must be 
 closed.* 
 
 d. Wharfage Fees and Charges. 
 
 The same principles are applicable to and regulate the use of 
 watercourses as highways. The right of transportation over a 
 stream includes the right to make such uses of it as are essentia! 
 to the exercise and enjoyment of the right to navigate and trans- 
 port. Such a right has been held to include the right of anchor- 
 age, of mooring to wharves, and to moor logs and rafts for the 
 purpose of making up or breaking the rafts, provided there is no 
 interference with the rights of riparian proprietors.'- Reasonable 
 compensation can be exacted by the owner for the use of wharves.' 
 
 WlucTc V. Eidgewood Ice Go. (Sup. Ct. Mar. 28, 1890) 31 N. Y. S. R. 99. 
 
 "^Onderdunk v. Bmith, 27 Fed. Rep. 874. 
 
 ^Mersey Docks v. Penhallow, 30 L. J. N. S. Exch. 329; Mersey Docksv. Oihhs, L. 
 R. 1 H. L. 93, 35 L. J. N. S. Exch. 225; Parnnhyv. Lancaster Canal Co. 11 
 Ad. & El. 223; Lo^o v. Grand Trunk R. Go. 72 Me. ZIZ; Nicker son v. Tirrell, 
 127 Mass. 236 ; Davis v. Central Congregational Society, 129 Mass. 3G7, 371 ; 
 Wendell V. Baxter, 12 Gray, 494; Stratton v. Staples^ 59 Me. 95; Campbell 
 V. Portland Sugar Co. 62 Me. 552; Bolch v. Smith, 7 Hurl. & N. 741; In- 
 demaurv. Dames, L. R. 2 C. P. 311; Tobinv. Portland, S. & P. R. Co. 
 59 Me. 183; Gilbert v. Nagle, 118 Mass. 278; Baker v. Byrne, 58 Barb. 
 438; Collett v. London <& N. W. R. Co. 16 Q. B. 984; Severy v. Nickerson, 
 120 Mass. 306; Zoebisch v. Tarbdl, 10 Allen, 385; Holmes v. North Eastern 
 R. Go. 38 L. J. N. S. Exch. 161 ; White v. France, L. R. 2 C. P. Div. 308. 
 
 ^Gibbs V. Liverpool Docks, 3 Hurl. & N. 164, 176; Mersey Docks v. Penhallow, 
 7 Hurl. & N. 329; Parnaby v. Lancaster Canal Co. 11 Ad. & El. 223; 
 GRotirke v. Peck, 40 Fed. Rep. 907; New Orleans, M. & G. R. Go.\. Man- 
 ning, 82 U. S. 15 Wall. 649, 21 L. ed. 220; Indemaur v. Dames, h. R. 2 C. 
 P. 311; Lyme v. Henley, 3 Barn. & Ad. 77. 
 
 '•Davis V. Winslow, 51 Me. 64. 
 
 ^De Bxry Bxya Merchants Line v. Jacksonville, T. & K. W. R. Go. 40 Fed. 
 Rep. 392.
 
 Chap. XXIY.] ■WHAKFAGE AND WHARVES. 5G9 
 
 If the wharfage is extortionate it is for the State to regulate it.' 
 
 A vessel discharging at a wharf, which is compelled to overlap 
 the next wliarf and occupy the space in front of it, though not 
 tying to it and not using it, is still bound to pay wharfage at the 
 customary rate, for the space occupied, proportionately to the size 
 of the vessel." 
 
 In estimating a reasonable wharfage charge, the fact that the 
 wharf might have been greatly damaged, or that a storm was pre- 
 vailing at the time, is not to be considered.* A vessel whicli 
 voluntarily makes fast to a wharf, although she did not voluntarily 
 take a position by the wharf, is subject to an implied contract to 
 pay wharfage.* 
 
 Wharfage fees cannot be collected on an implied contract for 
 putting out a safety line to a private wharf, and for the use of 
 which there are no fixed charges or rates, and which the public 
 has no right to use." 
 
 If a wharf is surrendered to the public without charge, then the 
 
 owner will not be liable except for such negligence in its care as 
 
 will render it a public nuisance.* 
 
 ^De Bary Baya Merchants Line v. Jacksonville, T. & E. W. R. Co. 40 Fed. 
 
 Rep. 392. 
 '^Tke Wm. H. Bnnsfield, 39 Fed. Rep. 215. 
 « * ^Heron v. The Marchioness, 40 Fed. Rep. 330. 
 ^Kennedy v. New York, 73 N. Y. 365.
 
 CHAPTER XXY. 
 
 EXTINGUISHMENT OF EASEMENTS. 
 
 •Sec. 76. How Easements are Extinguished. 
 
 a. By Release. 
 
 b. By Merger in Union of Titles. — Natural, Necessary and 
 
 Apparent Easements not Lost. 
 
 c. Where Usefulness of Easement Ceases. 
 
 d. Exercise of Eight Suspended by Superior Power. 
 
 e. Renunciation or Abandonment by Encroachment on Easement. 
 
 f. Abandonment of Easement a Question of Fact and Intention. 
 
 g. Adverse User to Extinguish Easement. 
 
 h. Extinguishment of Prescriptive Easement. — Admissions. 
 
 Section "tG.Sow Easements are Extinguished, 
 
 a. By Release. 
 
 Easements are extinguislied by release, merger, necessity, and 
 by prescription, renunciation or abandonment shown by decisive 
 acts.* 
 
 An easement is extinguished as matter of law, and there is no 
 question for the jury, where a relinquishment thereof for a good 
 consideration: has been followed by nonuser for more than twenty 
 years, during a large portion of which time a substituted easement 
 has been used, and the servient estate has in the mean time been 
 conveyed by warranty deeds to purchasers having no notice of 
 any claim of an existing easement.* Any act which will lead oth- 
 ers, who proceed with due caution, and upon reasonable examina- 
 tion, to invest their money in good faith or to treat the servient 
 estate as though the servitude did not exist, and thus place them- 
 selves in a position with respect to it where the revival of the 
 easement would practically amount to a fraud upon the rights 
 
 ^Steere v. Tiffany, 13 R. I. 570; Sanderlin v. Baxter, 76 Va. 305; Anderson, 
 
 Law Diet. 391. 
 ^Snell V. Levitt, 110 N. Y. 595, 1 L. R. A. 414.
 
 •Chap. XXV.] HOW EASEMENTS ARE EXTINGUISHED. 571 
 
 "they suppose they have acquired in such estate, will be treated as 
 ^ relinquishment or release of the easement, even without proof 
 of such intention to release the right.' 
 
 While a verbal release of an easement will not be effective,* any 
 •easement may be released in due form and upon a sufficient consid- 
 eration.' And this result will sometimes follow an act, which will 
 be held a constructive release, though against the intent of the hold- 
 'Cr of the easement. Thus, in JoJinson v. Conant, 64 N. H. 109, 3 
 New Eng. Rep. 102, the plaintiff, being owner of a blacksmith- 
 shop plot, and a right to use water there to be taken from a cer- 
 tain flume, gained by prescription the right to have water from 
 some of the wheels in the shop pass off into the river to the west 
 under the flume, while the water from other wheels by right 
 passed out under the grist-mill south of the shop, of which he 
 owned one undivided half. Afterwards, in a deed of his half of 
 the grist-mill, the plaintiff reserved " a right of sluice or water- 
 course under the grist-mill, for the water privilege north of said 
 mill." The effect of this deed was to extinguish the plaintiff's 
 right to have a discharge of water from the blacksmith-shop privi- 
 lege under the flume, although there was never any intention on 
 his part to abandon that easement. 
 
 It appears that for the return of water from his wheels to the 
 river in his enjoyment of his privilege on his blacksmith-shop lot, 
 the plaintiff formerly had two easements in raceways running from 
 
 ^Vogler v. Geiaa, 51 Md. 407; Hatch v. Bwighf, 17 Mass. 289; Steerev. Tiffany, 
 13 R. I. 568; White v. Crawford, 10 Mass. 183; Perkins v. Dunham 3 
 Strobh. L. 224; Dyer v. Sanford, 9 Met. 395; Emerson v. Wilei/, 10 Pick. 310; 
 Curtis V. Noonan, 10 Allen, 406; Williams v. Nelson, 23 Pick. 141. 147; 
 Morse y. Copeland, 2 Gray, 302; Miller v. Garlock. 8 Barb. 153; Poj)e v. 
 Devereaux, 5 Gray, 409; tlall v. Swift, 6 Scott, 167; King v. Murphy, 140 
 Mass. 254; French v. Braintree Mfg. Co. 23 Pick. 216; Dyer v. Depui 
 5 Whart. bM; Reg. v. Ch&rley, 12 Q. B. 515; Farrar v. Cooper, 34 
 Me. 394; Arnold v, Stevens, 24 Pick. 106; Toionsend v. McDonald, 12 
 N. Y. 381; Crossley v. Lightoioler, L. R. 2 Ch. App. 482; Pillsbury v. 
 Moore, 44 Me. 154; Cartioright v, Mapleson, 53 N. Y. 022; White's Bank 
 V. Nichols, 64 N. Y. 65; Nitzell v. Paschall. 3 Rawle, 76, 82; Jewclt v. Jew- 
 ett, 16 Barb. 150; Taylor v. Hampton, 4 McCord. L. 96; Lawrence v. Ohee, 3 
 Camp. 514; Mowry v. Sheldon, 2 R. I; 369; Hall v. McCaughey, 51 Pa. 43; 
 Owen V. Field. 102 Mass. 114; Hurd v. Curtis, 7 Met. 94, 115; Wilder v. 
 St. Paul, 12 Minn. 208; Veghte v. Raritan Water Power Co. 19 N. J. Eq. 
 156. 
 
 ■^Erb V. Brown, 69 Pa. 216; Dyer v. Sanford, 9 IMet. 395. 
 ■^Snell V. Levitt, 110 N. Y. 595, 1 L. R. A. 414; Hamilton v. Farrar, 128 Mass. 
 492.
 
 572 IMPOSED DUTIES, PERSONAL. [Part II, 
 
 that lot to the river, one under the grist-mill, and the other under 
 the flume; and he reserved the former when he conveyed half of 
 the grist-mill " witli the first right of water-powei-" and " a pro- 
 portionate right of the flume." If the raceway under the flume 
 had been in use when he reserved the other, it might have been 
 argued that there was a presumption of his intent to retain the- 
 right in use at that time; but as neither of them was then in use, 
 and neither had been used for fifteen years, no presumption arose- 
 from the contemporaneous use of the premises in favor of an im- 
 plied reservation of an easement that would materially impair tlie 
 apparent extent and value of his grant. In view of the condition 
 of the blacksmith-shop lot, of which no use had been made for 
 fifteen years, and on which, during that time, there had been na 
 building, and no indication either of any intended use, or of any 
 necessity for two raceways if it should ever be used again, his 
 grantees might well understand that, as the subjection of the grist- 
 mill to one racewaj^" easement for the benefit of the vacant lot was 
 expressly contained in the deed, their right to permanently rebuild 
 the flume was not obstructed by another concerning which the 
 deed was silent. The construction of the deed is the ascertain- 
 ment of the fact of the parties' intention from competent evidence.^ 
 It was said by the court in Johnson v. Conant^ sujjra, that in 
 whatever doubt this fact may be left by the evidence, there is a. 
 preponderance of probability that the parties intended the grist- 
 mill privilege should not be burdened with two raceways for the 
 unoccupied lot; and that the one he reserved under the mill was- 
 the only one the plaintiff was to have across the grist-mill lot. The 
 other was extinguished by the deed. 
 
 But a grantee's right of drainage through a private way acquired 
 by prior adverse use is not vacated by a clause in the deed that he 
 should have no right of frontage on or access to such private way 
 on any land except .the parcel conveyed thereby, the clause being 
 construed as explanatory of the description in the deed and not as 
 releasing a right already acquired.^ 
 
 Failure to record a sealed instrurhent releasing an easement is of 
 
 no importance, even as against subsequent purchasers, where the 
 
 iSee Mobile & M. R. Co. v. Jurey, 111 U. S. 584, 592, 28 L. ed. 527, 530; 
 
 Hard v. Dunsmore, 63 N. H. 171; Craicford v. Parsons, 63 N. H. 438. 
 ^Fiske V. Wetmore, 15 R. 1. 366, 5 New Eng. Rep. 93.
 
 Chap. XXV.] HOW EASEMEXTS ARE EXTINGUISHED. 573 
 
 execution of such instrument is followed by acts denoting an un- 
 equivocal intention to abandon the easement, as the instrument is 
 of importance only as showing, with the other facts, an intention 
 to abandon the easement.' 
 
 b. By Merger in Union of Titles— J\''atural, Xeces- 
 sary and Apparent Easements not Lost. 
 
 When the owner of an estate enjoys an easement over anotlier 
 .property, and acquires title to the latter, the easement is thereby 
 extinguished.'' But if the title to one estate fail, the easement will 
 revive to the holder of the other estate, in whose hands the estate 
 was lost.' An estate mortgaged, when the mortgage is discharo-ed 
 •or the estate redeemed, is freed from any intervening easement. 
 And upon the foreclosure of the mortgage, all easements created 
 subsequent to the date of the instrument by the moi'tgagor or 
 those holding under his title are released." 
 
 But in order that the unity of the title and possession of the 
 dominant and servient estates may e.xtinguish an easement, the 
 ownership of the two estates must be equal in extent, validity, 
 quality and all other circumstances of right. Uniting an estate 
 in fee in land, and a chattel interest, as a lease for ninetv-nine 
 years, will not operate as an extinguishment.^ JSTor will the own- 
 ership in reversion of different properties by one person extinguish 
 an easement and servitude between them* If one is held in sev- 
 eralty and the other only as to a fractional part thereof by the 
 
 ^Snellv. LeviU, 110 N. T. 595, 1 L. R. A. 414. 
 
 ^Eowell V. Esten. 71 Tex. 690; Wilder v. Wheeldon, 56 Vt. 344; Plimpton v. 
 
 Converse, 42 Vt. 712; Canham v. Fisk, 2 Cromp. & J. 126; llohbins v. 
 
 Barnes, Hob. 131; Sury v. Pigot, Popli. 166; Packer v. Welsted, 2 Sid. 39; 
 
 Atwaier v. Bodjish, 11 Gray, 152; Hancock v. Wentworth, 5 j\Iet. 446; 
 
 Grant v. Chase, 17 Mass. 443; Kiefferw. Imlioff, 26 Pa. 438; Coleman's 
 
 Appeal, 62 Pa. 274; Oayetty v. Bethune, 14 Mass. 53; Wairen v. Blake, 54 
 
 Me. 281. 
 'Tyler v. Hammond, 11 Pick. 193. 
 ^Curtis V. Francis, 9 Cush. 437; Ritf/er v. Parker, 8 Cusb. 145; Ballard v. 
 
 Ballardvale Co. 5 Gray, 471. See Heartt v. Kruger, 121 N. Y. 386 9 L. 
 
 R. A. 135. 
 
 *Atalanta Mills v. Mason, 120 Mass. 244; Ex parte Gay, 5 Mass. 419; Chap- 
 many. Gray, 15 Mass. 445; Brewster v. Hill, 1 N. H. 350; Dority v. Dun- 
 ning, 1% },le. ^^\,^'i!{ aw ling. Rep. 41; Hollenbeck v. McDo)iald, 113 
 Mass. 249; Thomas v. Thomas, 2 Cromp. M. & R. 34. 
 
 *Hinchliffe v. Kinnoul, 5 Bing. N. C. 1.
 
 574 IMPOSED DUTIES, PERSONAL. [Part !!► 
 
 same person there will be no extingnisliment of snch easement/ 
 Thus it was held bj Abinger, C. B., in the English Court of Ex- 
 chequer in Thomas v. Thomas, 2 Cromp. M. & R. 34, in which 
 case one estate was held in fee and the other for a term of 500' 
 years, that unity of possession did not extinguish the easement, 
 but only suspended it during the unity of possession; and upon 
 parting with the premises to different parties, the right revived.* 
 An easement may exist in favor of several joint owners, although 
 one of their number own the servient estate.^ Where the act of 
 the owner while in possession of two properties has changed the 
 existing conditions or the extent of the easement and servitude,, 
 the severance of the title will not in many cases revive the ease- 
 ment to its full extent, unless it be so stated in the grant.'* 
 
 Although it is said in general terms that an easement suspended 
 by merger of two estates in one title will not pass as appurtenant 
 to the premises granted on severance of the title,* yet a natural 
 easemegit will be revived and pass with the grant.' This is also- 
 true of an easement which arises of necessity,' and of a continu- 
 ous and apparent easement.* 
 
 c. Where Usefulness of Easement Ceases. 
 
 Where the necessity or usefulness of the easement has ceased,. 
 
 ^Ritger v. Parker, 8 Gush. 147; Imnney v. Stacker, L. R. 1 Ch. App. 396;. 
 Bradley Fish Go. v. Dudley, 37 Conu. 136. 
 
 'See Reed v. West, 16 Gray, 284; Atalanta Mills v. Mason, 120 Mass. 251; 
 Tucker v. Jewett, 11 Conn. 331; Canham v. Fisk, 2 Cromp. »& J. 126, and 
 note; James v. Plants, 4 Ad. &E1. 749; Tyler v. Hammond, 11 Pick. 193, 
 230; Manning v. Smith, 6 Conn. 389; Hazard v. Robinson, 3 Mason, 373; 
 Pearce v. McGleneghan, 5 Rich. L. 178; Kieffer v. Imhoff, 26 Pa. 438. 
 
 ^Bradley Fish Co. v. Dudley, 37 Conn. 136. 
 
 ^Nicholas V. Chamberlain, Cro. Jac. 131; Sui'y v. Pigot, Poph. 166; Washb. 
 Easem. (4tli ed.) 689; Hazard v. Robinson, 3 Mason, 273. 
 
 KJamesv. Plant, 4: M. &E1. 749. 
 
 ^Dunklee v. Wilton R. Co. 4 Fost. 489. 
 
 "'Grants. Chase, 17 Mass. 443. 
 
 '^SeibertY. Levan, 8 Pa. 383; Leonard v. Leonard, 2 Allen, 543; Hazard v. 
 Robin>ion, 3 Mason, 173; Zellv. First Universalist Society, 119 Pa. 390, 12- 
 Cent. Rep. 14S; Glave v. Harding, 3 Hurl. & H. 937; Pyer v. Carter, 1 
 Hurl. &N. 916; Phillips v. Phillips, 48 Pa. 178. But see Partridge v. 
 Gilbert, 15 N. Y. 601; Hoffman v. Kaher, 57 Miss. 746; and ante p. 316,. 
 Destruction of Party- Wall. See also wiiat has been already said as to con- 
 tinous and apparent easements, ante, pp. 341-343.
 
 Chap. XXY.] HOW easements are extinguished. 575 
 
 the easement will be extinguished.' If buildings to which the 
 way gave access are suffered to fall into decay or disuse or are de- 
 stroyed or removed, the way will be lost.' Where the purpose 
 for which the easement was created has ceased, the easement can- 
 not be continued for a new use.' But a public easement will not 
 supersede a private easement, although it render the latter no 
 longer necessary.* 
 
 The right, however, to use an alley which was a continuous and 
 apparent way, and was the only approach from the highway to the 
 land sold, is not extinguished by a subsequent purchase by the 
 grantee of another lot, over which there is a passage to the high- 
 way, for the right to the use of the alley passed, not as a way of 
 necessity, but as an appurtenance to the lot.* But upon the con- 
 veyance of a lot with the right to use an underground drain, run- 
 ning through other premises owned by the grantor, the right of 
 the grantor to use the drain on adjoining lots owned, by him is 
 lost unless expressly reserved by the deed.' 
 
 d. Exercise of Ri^ht Suspended hy Superior 
 
 Power. 
 
 Where the right is suspended by what is called the act of God, 
 as by the drying up of a spring, it will revive again on the reflow 
 of the water, but if the cause be the voluntary act of the party, 
 knowing his rights and intending the result, the removal of the 
 obstacle by a superior force will not revive his easement/ And 
 if the owner, when he might restore his easement, lost by the in- 
 
 ^Heartt v. Zrw^rer, 121 N. Y. 386,9 L. R. A. \Z^; Holmes y. Goring, 2 
 Bing. 76; Partridge v. Gilbert, 15 N. Y. 601; Ogdenv. Jennings, 63 N. Y. 
 531; Mussey v. Proprietors Union Wharf, 41 Me. Z^;ante, p. 216, Destruc- 
 tion of Party-Wall. 
 
 ^Hancock v. Wentworth, 5 Met. 446; Gayetty v. Bethune, 14 Mass. 4d;Brond- 
 age v. Warner, 2 Hill, 145. 
 
 ^National Manure Co. v. Donald, 4 Hurl. & N. 8; Central Wharf Co. v. In- 
 dia Wharf 123 Mass. 567. 
 
 *Hastings v. Livermore. 15 Gray, 13; Allen v. Onnond, 8 East, 4. See 
 Party- Wall, ante, p. 201 et seq. 
 
 ^Zell V. First Universalist Soc. 119 Pa. 390, 12 Cent. Rep. 148. 
 *Munson v. Reid, 46 Hun, 399. 
 
 ''Taylor v. Hampton, 4t. McCord, L. 90; Whites Bank v. Nichols, 64 N. 
 Y.05.
 
 576 BIPOSED DUTIES, PERSONAL. [Part II. 
 
 terposition of Providence, permit another to avail himself of the 
 easement and enjoy it, he will be held to have abandoned it.' 
 
 Where an alley between two houses had been used for over 
 forty years by the adjoining owners for access to the rear of their 
 houses and to the lots behind and belonging thereto, and both 
 houses were destroyed by fire, the easement in the alley was not 
 thereby lost, and whether one of the parties had forfeited her right 
 thereto by placing the foundation of her house in the alley, in 
 rebuilding, the evidence being conflicting, should be determined 
 by an issue at law before she could enjoin the other party from 
 appropriating the part of the alley next to his lot in rebuilding.^ 
 Where a deed reserved a way over a lot to a barn standing on an 
 adjoining lot, the easement was not lost by the destruction of the 
 barn subsequently.' 
 
 €. Renunciation or Abandonment hy Encroach- 
 ment on Easement, 
 
 The abuse of a prescriptive right does not create a forfeiture of 
 the right,* But where the encroachment tends to destroy the 
 easement it will have this effect. Thus, the encroachment by one 
 party upon a way held in common by building part of the wall of 
 a house upon a portion of it, and inclosing another portion within 
 a fence, works an extinguishment by operation of law, especially 
 where the other party sells his interest after such acts done, and 
 the purchaser acquiesces in and confirms what has been done.* 
 
 Any right may be destroyed, not only by an act of a party pos- 
 itively destructive of the right, but by an act incompatible with 
 the nature or exercise of it.' 
 
 An easement established by grant may be lost by nonuser con- 
 sequent upon something which prevents user and is utterly incon- 
 
 ^ Thomas v. Hill, 31 Me. 252; Dunkleev. Wilton B. Co. 4 Fost. 489. 
 
 ^Chew V. Cook, 39 N. J. Eq. 396, note. 
 
 ^Bangs v. Parker, 71 Me. 458. 
 
 *Masonic Temple Asho. v. Harris, 79 Me. 250, 4 New Eng. Kep. 407; Mendell 
 V. Delano, 7 Met. 176. 
 
 ^Corning v. Oould, 16 Wend. 531. See Steere v. Tiffany, 13 R. I. 568; Dill- 
 man V. Hoffman, 38 Wis. 559; Partridge v. Gilbert, 15 N. Y. 601; King 
 V. Murphy, 140 Mass. 254, 1 New Eng. Rep. 434. 
 
 ^TayW V. Hampton, 4 McCord, L. 96-103.
 
 CLap. XXV,] now easements are extinguished. 577 
 
 sistent with its enjoyment/ "Where the owner of the doniinaiit 
 estate closes liis access to a way over adjoining private premises, 
 with the intention of abandoning the way, such act operates as a 
 present abandonment of the easement, which thereby ceases to be 
 appurtenant to the estate and does not pass to a subsequent grantee 
 of the estate under a deed which does not mention sucli way." 
 If he permit another to close the way without protest, having the 
 means of opposing it, the easement will be lost.' 
 
 Building over an alley between two houses is not usually an 
 abandonment of the easements therein.' The owner of an ad- 
 joining tenement, who had the fee in the soil over which was a 
 way, built over the way at an elevation of eleven feet; the court 
 held that it was lawful for him to do so.* But building in an 
 alley or on a part thereof is an abandonment. ' 
 
 f. Abandomnent of Easement a Question of Fact 
 and Intention. 
 
 When the question of the extinguishment or the abandonment 
 of an easement otherwise than by deed enters into the case the 
 following principles are established on authority : (1) It is a ques- 
 tion of fact and intention. (2) The declarations and acts of the 
 owner of the dominant estate are competent evidence. (3) Time 
 
 ^ Barnes Y. Lloyd, 112 Mass. 231; White v. Oraicford, 10 Mass. 183. 
 
 ^Eing v. Murphy, 140 Mass. 254, 1 New Eng. Rep. 434. 
 
 ^Arnold v. Corniman, 50 Pa. 361. 
 
 ^Stevenson v. Stewart, 7 Phila. 293; Richardson v. Pond, 15 Gray, 387; Ger- 
 
 rish V. Shaituck, 132 Mass. 235; Atkins v. Bordman, 20 Pick. 291, 2 ]\Iet. 
 
 457; Beecher v. People, 38 Mich. 289. See Bowling v. Henningn, 20 Md. 
 
 179; Kean v. AscJi, 27 N. J. L. 57; Grove v. Ft. Wayne, 45 lud. 429; Eane 
 
 V. Bolton, 36 N. J. Eq. 21. 
 
 ^Gerrish v. Shattuck, 132 Mass. 235. See also Atkins v. Bordman, 2 Met. 
 457. 
 
 * Corning y. Gould, 16 Wend. 531; Erehl v. BurriU, L. R. 7 Cii. Div. 551; 
 Allen V. Gomme, 11 Ad. & El. 759; Voglerv. Gci,is, 51 Md. 407; Steere v. 
 Tiffany, 13 R. I. 568; Ball v. McCaughey, 51 Pa. 43; Billman v. ILffiuan, 
 38 Wis. 559. See Bowen v. Team, 6 Rich. L. 298; Uayford v. iSjwLsfieid, 
 100 Mass. 491; Bodge y. Stacy, 39 Vt. 558; Eirkpatrick v. Broicn, 59 Ga. 
 450; Carlin v. Paul, 11 Mo. 32; Hacke's Appeal, 101 Pa. 245; Taylor v. 
 " Hampton, 4 McCord, L. 96; Craven v. Rose. 3 Rich. L. 72; Henry v. Eoch, 
 22 Am. L. Reg. N. S. 394; Ebnery. Eatichter, 19 Pa. 19; Lattimery. Liver- 
 more, 72 N. Y. 174; Arnold v. Cornman, 50 Pa. 361; Smith v. Winaia, 53 
 N. H. 112. 
 
 37
 
 57b IMPOSED DUTIES, PERSONAL. [Part 11. 
 
 is not a necessary element. (4) The surrounding circumstances 
 and conditions are all to be considered. ' 
 
 As an easement acquired by deed cannot be extinguished by 
 nonuser, a fortiori it cannot be modified by using only for one 
 purpose.* The presumption is that a man intends to claim and 
 not to abandon his rights, and this state of his intention is not 
 negatived by his failure constantly to exercise in actual enjoyment 
 all the rights he possesses.^ Nonuser, to destroy an easement, un- 
 less there be an adverse user by the owner of the servient estate, 
 must be accompanied with decided acts showing intention to 
 abandon.'' In some cases the court has refused, where one way 
 has been substituted for another, but no new easement had been 
 acquired by prescription in the substituted way, to hold the sub- 
 stitution as an abandonment of the old easement.^ Indeed, the 
 statement of an intention to abandon an easement, if communi- 
 cated to and acted upon by another, will upon such action destroy 
 the easement." But evidence of an executed oral agreement to 
 substitute a difierent way is com^Detent evidence of the surrender 
 of the old way. ' 
 
 "Where a party relinquishes the enjoyment of an easement or 
 servitude, it lies with him to show an intention to resume the use 
 of it within a reasonable time;' and where there are no circum- 
 stances intimating the suspension to be temporary only, a bona fide 
 purchaser will be protected in the enjoyment of the property as 
 it appeared at the time of his purchase.' But a right of way is 
 
 ^King v. Murphy, 140 Mass. 254, 1 New Eng. Rep. 434; Pope v. Dewreuz, 5 
 
 Gray, 409; Warhauer v. Randall, 109 Mass. 586; Dyer v. San ford, 9 Met. 
 
 395; Eeg. v. Charley, 12 Q. B. 515; Cook v. Mayor, L, R. 6 Eq. 177-179. 
 ^ Hay ford v, SpoJcesfield, 100 Mass. 491; Barnes v. Lloyd, 112 Mass. 224. 
 ^Eolt V. Sargent, 15 Gray, 97; Sargent v. Hubbard, 102 Mass. 380. 
 *mdy V. Chase, 140 Mass. 471, 1 New Eng. Rep. 57; Willeyv. Norfolk 8. R. 
 
 Co. 96 N. C. 408; Crain v. Fox, 16 Barb. 184; Dreioett v. Sheard, 7 Oar. & 
 
 P. 405; Liggins v. Inge, 7 Biag. 682, per Tiadal, Ch. J.; Dyer v. Sanford, 
 
 9 Met. 395. 
 ^Lovell V. Smith, 3 0. B. N. S. 120; Wright v. Freeman, 5 Har. & J. 467, 
 
 478; Hale v. Oldroyd, 14 Mees. & W. 789. 
 ^French V. Braintree Mfg. Co. 23 Pick. 216; Liggins v. Inge, 7 Bing. 682. 
 
 Examine Williams v. NeUon, 23 Pick. 141. 
 "^Pope V. Demreux, 5 Gray, 409. 
 ^Moore v. Rawson, 3 Bar a. & 0. 332; Vogler v. Geiss, 51 Md. 407; Hayford 
 
 V. Spokesfield, 100 Mass. 491; Dyer v. Sanford, 9 Met. 395; Hoffman v. 
 
 Savage, 15 iMass. 130. 
 ^Corning v. Gould, 16 Wend. 531.
 
 Chap. XXY.] HOW EASEMENTS ARE EXTINGUISHED. 579 
 
 not extinguished by the habitual use by its owner of anotlier way 
 equally convenient, instead of it, unless there is an intentional 
 abandonment of the former way, and such intention will not be 
 implied from the use.' An abandonment of right of way is more 
 readily presumed where it is for the public benefit rather than 
 private use/ 
 
 Where the owner of an ancient warehouse filled the windows 
 on one side from the interior with mortar and stone, leaving the 
 iron bars on the exterior, marking the location of the windows, 
 and nineteen years thereafter, the purchaser of the adjoining land, 
 preparatory to building, erected a frame against the closed spaces, 
 in an action against such purchaser for the trespass, it was submitted 
 to the jury to determine whether the owner of the warehouse had 
 manifested such an appearance of having abandoned his right as 
 to induce the purchaser of the lot to alter his position in the rea- 
 sonable belief that the right was abandoned. This was held on re- 
 view a proper action by the court, and the finding for the plaintiff 
 was treated as a conclusion by the jury that the plaintiff did not 
 so close up his lights as to lead the defendant to incur expense or 
 loss on the reasonable belief that they had been permanently 
 abandoned, nor so as to manifest an intention of permanently 
 abandoning the use of them.' 
 
 That a purchaser of a dominant estate bid at a sale of the serv- 
 ient estate covered by a right of way is not evidence that he does 
 not claim the right to use it.* 
 
 g. Adverse User to Extinguish Easement. 
 
 Mere nonuser for twenty years affords a presumption of ex- 
 tinguishment, though not a very strong one, in a case unaided by 
 circumstances. A right reserved of cutting timber and of grazing 
 in the woods " not appropriated or fenced in" is no more than a 
 right of common, and that right is utterly inconsistent with the 
 exercise of the right of inclosure. The long disuse of this right 
 
 ^Jamaica Pond Aqueduct Corp. v. Chandler, 121 Mass. 3. 
 Henderson V. Cent. P(ifis. R. Co. 21 Fed. Rep. 358. 
 ^Stokoe V. Singers, 8 El. & Bl. 31-39. See Parkins v. Dunham, 3 Strobh. 
 
 L. 234; Cookv. Mayor, L. R. 6 Eq. 177; Farrar v. Cooper, 34 Me. 31)4, 
 
 400. 
 *Zell V. First Universalist Sac. 119 Pa. 390, 12 Cent. Rep. 148.
 
 580 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 is evidence of the sense of the parties that the right ceased when 
 the woods were fenced in, and a right of this kind, as well as 
 other rights, may be lost by negligence and disuse. This was so 
 said in GatewanVs Case^ 6 Coke, 59 h. It will let in the presump- 
 tion of a release or other discharge, and such presumptions are to 
 be favorably received in opposition to dormant claims, because 
 they conduce to the quiet of titles and the security of estates.' 
 
 Mere nonuser for even twenty years is not sufficient in it- 
 self merely when the easement is by grantf but in the event of 
 nonuser for even a shorter period, if there has been in the 
 mean time some act done in good faith, by the owner of the land 
 charged with the easement, inconsistent with or adverse to the 
 right, and which would be an injury to him if the easement was 
 continued, an extinguishment will be presumed.^ Where the 
 easement was acquired by grant, there must be an adverse use by 
 the servient estate for the period necessary to create a prescrip- 
 tive right in connection with the nonuser.* 
 
 Prescription does not run against the exercise of a servitude in 
 favor of one who resisted and prevented its exercise.* Abandon- 
 ment of a drain, or disuse of it, for any time, breaks the continu- 
 
 ^Ten Broeck v. Livingston, 1 Johns. Ch. 357, 1 N. Y. Ch. L. ed. 170. 
 
 ^Day V. Walden, 46 Mich. 575; Arnold v. Slevens, 24 Pick. 106; Jewett v. 
 Jewett, 16 Barb. 150. 
 
 ^Siiell V. Levitt, 110 N. Y. 595, 1 L. R. A. 414. See 3 Kent, Com. (11th ed.) 
 *448; Wright v. Freeman,, 5 Har. & J. 477; Emerson v. Wiley, 10 Pick. 
 310; Teakle v. Wace, 2 Wiiart. 123; Knight v. Heaton, 22 Vt. 480; Peoria 
 V. Johnston, 56111. 51; Champlinw. Morgan, 20 111. 182; Lewiston v. Proc- 
 tor, 27 111. 418; Littler v. Lincoln. 106 111. b53; Winnetka v. Proutij, 107 
 111. 225; Smith v. Lavgewald. 140 Mass. 205, 1 New Eng. Rep. 449; Jen- 
 nison v. Walker, 11 Gray, 423; Owen v. Field, 102 Mass. 90; Barnes v. 
 Lloyd, 112 Mass. 224; Chandler v. Jamaica Pond Aqueduct Corjj. 125 Mass. 
 544; Crossley\. Lightowler, L. R. 2 Ch. App. 478; Canny v. Andrews, 128 
 Mass. 155. 
 
 *Curran v. Louisville, 83 Ky. 628; Snell v. Levitt, 39 Hun, 227; Lendeman v. 
 Lindsay, 69 Pa. 100; Bomhaugh v. Miller, 82 Pa. 203; Chandler v. Jamaica 
 Pond Aqueduct Coi'p. 125 Mass. 544 : RieJde v. Ueulings,^S N. J. Eq. 20; Wig- 
 gins V. McCleary, 39 N. Y. 346; Smiles v. Hastings, 24 Barb. 44; Jennison 
 V. Walker, 11 Gray, 423; Erb v. Brown, 69 Pa. 216; Day v. Walden, 46 
 Mich. 575; Pope v. CRara, 48 N. Y. 452; Farrar v. Cooper, 34 Me. 394; 
 Arnold v. Stevens, 24 Pick. 106; Bannon v. Angier, 2 Allen, 128; Buiz v. 
 Ihrie, 1 Rawle, 2i8; Owen v. B'ield, 102 Mass. 90; Devens, J., in Smith v. 
 Langewald, 140 Mass. 205, 1 New Eng. Rep. 449; Teakle v. Aace, 2 
 Wluirt. 123; Shields v. Arndt, 4 N. J. Eq. 434; Knight v. Beaton, 22 Vt. 
 480. 
 
 ''Sarpy v. Hymel, 40 La. Ann. 425.
 
 Chap. XXY.] HOW easements are extinguished. 581 
 
 ity of au adverse user, so as to prevent acquiring a right thereby 
 to flow tlie land of another.' 
 
 Interruptions of the use of an easement, wlien brought to the 
 knowledge of the claimant, rebut the presumption of a grant, un- 
 less such interruptions are promptly contested by the claimant 
 and the easement re-asserted." But intei-ruptions of the use after 
 the lapse of the time which raises the presumption of a grant of 
 the easement furnish evidence of, but do not constitute of them- 
 selves, an abandomnent.' 
 
 . A simple obstruction or obstacle to the use of an easement, in- 
 terposed by the owner of the servient estate, will not be sufficient 
 to extinguish the easement, although submitted to by the holder 
 of the easement, unless continued for twenty years. Unless there 
 be something in the terms of the grant creating the easement, or 
 in the nature of the easement itself, which requires its present ex- 
 ercise, there is no default in not using it, and the Statute cannot 
 commence to run until such default, and it is only upon the theory 
 that the obstacle interposed challenges immediate action, that the 
 Statute is supposed then to commence its course.* But this must 
 depend largely upon the nature of the easement, and of the inter- 
 posed obstacles and their prominence and apparent purpose. It is 
 not interruption of jDossession, but interruption of right, which 
 will bar the use.* 
 
 h. Extinguishment of Prescriptive Easement.— 
 
 Admissions. 
 
 A right acquired by prescription is in all respects as perfect as 
 one acquired by grant. It has the same validity and force," and 
 its owner cannot be devested of it by his words or acknowledg- 
 ments. But as to an easement not yet acquired, an asking of per- 
 
 ' Chapel V. Smith, 80 Mich. 100. 
 
 ■' ^Willey V. Jfiorfolk Southern R. Co. 96 N. C. 408., 
 
 ^Butz V. Ihrie, 1 Rawle, 218, 222; MtzeU v. Paachall, 3 Rawle, 76, 82; 7eakle 
 
 V. Nace, 2 Wbart. 123. 
 '"Arnold v. Stevens, 24 Pick. IQQ^Bowen-v. Team, 6Ricii. L. 298, 305; 2 Smith, 
 
 Lead. Cas. (5th Am. ed.) 211; Uayford v. Spokesfield, 100 Mass. 491; Ward 
 
 V. Ward, 7 Exch. 888; Co. Litt. 114 d; Hatdi v. Dwight, 17 Mass. 289; 
 
 Williams v. Nelson, 23 Pick. 141. 
 'Arbuckle v. Ward, 29 Vt. 43.
 
 582 IMPOSED DUTIES, PERSONAL. [Part II. 
 
 mission will interrupt the acquiring of the right and rebut the 
 presumption of a grant.' The sole ground of such evidence being 
 received to rebut the claim of a prescriptive right is that it is in- 
 consistent with such claim/ 
 
 In an action for flowing the plaintiff's land, the defendant 
 claimed a prescriptive right; and it apjDeared that several years 
 after the permanent structure of his dam had been built, he used 
 a flashboard on it for the purpose of storing water; that the plain- 
 tiff's evidence tended to prove that defendant, within fifteen years, 
 asked a former owner of the land for a license to raise the dam; 
 that one question was whether the conversation as to the license 
 related to the main dam or the flashboard; that the court in- 
 structed the jury that if it related to the dam, and that if the de- 
 fendant had gained a prescriptive right as to this, he could not be 
 devested of it by what he might say; but if it related to the flash- 
 board, which was first put on only thirteen years before, that it 
 was an acknowledgment of the superior right of the owner of the 
 servient estate and would rebut the presumption of a grant; that 
 the jury returned a verdict for the plaintiff, and, on inquiry by 
 the court, stated that the damages were given in consequence of 
 the flashboard. Held, that the result was logical and the verdict 
 valid. " 
 
 > Weed V. Keenan, 60 Vt. 74, 6 NewEne. Rep. 250; Mitchell v. Walker, 2 Aik. 
 266; Arbuckle v. Ward, 29 Vt. 43; 2 Washb. Real Prop. 321, 325; Watki?is 
 V. Peck, 13 N. H. 360; Medford First Parish v. Pi-att, 4 Pick. 222; Flora 
 V. Garbeau, 38 N. Y. Ill; Smith v. Miller, 11 Gra)\ 148; Sargent v. Bal- 
 lard, 9 Pick. 251-255; Wilder v. Wheeldon, 56 Vt. 344; Albee v. Huntley, 
 56 Vt. 457; Willey v. Hunter, 57 Vt. 479; Partch v. Spooner, 57 Vt. 583. 
 
 ^Watkins v. Peck, 13 N. H. 376; Hong W.Wallace, 28 N. H. 547; Arbuckle v. 
 Ward, 29 Vt. 43; Tracy v. Atherton, 36 Vt. 503. 
 
 *Weed V. Keenan, 60 Vt. 74, 6 New Eug, Rep. 251.
 
 PART III. 
 
 PERSONAL PROPERTY, DUTY OF CARE IN ITS CONTROL; FIRE. 
 
 CHAPTER XXYI. 
 
 DOMESTIC ANIMALS. 
 
 Sec. 77. Care Required of Owners of Machinery. 
 Sec. 78. Duties Imposed iqjon the Owners of Animals. 
 
 a. At Common Law the Owner must Keep His Cattle on His 
 
 Own Land. — Fences. 
 
 b. Statutes Requiring Land Owner to Fence aqainst Trespass- 
 
 ing Domestic Animals. 
 
 c. Fe7ice must not be a Soiirce of Danger to Cattle in Adjoining 
 
 Field or Highway. 
 
 d. County Commissioners or Local Authorities may be Enq^oiu- 
 
 ered to Authorize Cattle to Run at Large. — Driving off 
 Trespassing Animals. 
 6. Impounding Domestic Animals. 
 
 f. Authority to Impound and Sell Strayed Domestic Animals. 
 
 g. Rights of Owner of Impounded Animals. 
 
 h. Municipal Ordinances Regarding Strayed Domestic Animals. 
 i. Damages for Trespass of Animals Impounded. 
 
 Section 11.— Care Required of Owners of Machinery. 
 
 The rule of liability in the use of one's property, whether realty 
 or personalty, is the same/ and the nser of either in a manner for 
 which the property is not appropriate imposes no more liability in 
 the one case than in the other.^ 
 
 The general duty rests upon one employing machinery to see to 
 
 it that it is reasonably suflScient for the service intended." Xeglect 
 
 of fencing dangerous machinery, misleading one into the belief 
 
 ^Reedie v. London & N. W. R Co. 4 Exch. 344. 
 
 "^Faiijoy V. Scalen, 29 Cal. 243. 
 
 ^Cowley V. Sunderland, 6 Hurl. & N. 5G5.
 
 58-i IMPOSED DUTIES, PERSONAL. [Part III, 
 
 that it might be safely approached, would be the foundation of a 
 right of action where injury resulted.' Evidence to show that it 
 is customary in other mills to cover gearing of the kind in ques- 
 tion is competent as to whether the defendant was negligent in 
 not covering it in his mill; and it is not necessary to call experts 
 to prove that it ought to have ])een covered.^ 
 
 The case of Blodgett v. Smith, 7 Hurl. & N. 732, was an action 
 to recover damages for injuries to plaintiff by coming in contact 
 with machinery that was carelessly left unguarded. Martin, J.y 
 says: " Then what is the true condition of the plaintiff? It is- 
 said that he had a right to go along the path across which was 
 the machinery erected for the use of the workmen employed in 
 the dock-yard, and had liberty to use the water-closet; but that is 
 a fallacious argument. It is true that plaintiff had permission to 
 use the path, and permission involves a license, but it gives no 
 right. If I avail myself of permission to cross a man's land, I do 
 so by virtue of a license, not of a right. It is an abuse of lan- 
 guage to call it a right; it is an excuse or license, so that the party 
 cannot be treated as a ti'espasser. Inasmuch as there was another 
 way by which the plaintiff might have gone, but he voluntarily 
 chose the one which was out of order, I think he has no right of 
 action against the defendant, and that he ought to have been non- 
 suited on the trial." 
 
 The decision in Siangan v. Atterton, L. R. 1 Exch. 239, is in- 
 cidentally criticised by Cockburn, Ch. J., in Clarh v. Chamhers^ 
 L. R. 3 Q. B. Div. 327, who remarks that "it appears that a man 
 who leaves in a public place along which persons, and among them 
 children, have to pass, a dangerous machine which may be fatal 
 to anyone who touches it, without any protection against mischief, 
 is not only guilty of negligence, but negligence of a very repre- 
 hensilDle character." 
 
 Where a boy, four or five years old, climbed on a railroad car 
 standing on a slightly descending grade and unfastened the brakes, 
 starting the car, and then, jumping off, was run over and killed, 
 the road was held not liable. It was said: " The cars were not 
 dangerous machines, left exposed near a populous city, nor were 
 
 ^Bolch V. 5wjYA,7Hurl. &N. 726; Ccmioellv. Worth, 25 L. J. N. S. Q. B. 121. 
 ^Nadau v. White Biier Lu7nber Co. 76 Wis. 120.
 
 Chap. XX VL] DUTIES IMPOSED UPON THE OWNERS OF ANIMALS. 5Si> 
 
 they of that alluring character to entice boys to play upon them, 
 for when unfastened they would move only a few feet and then 
 stop; nor were they dangerous, even when moving, to ordinaiy 
 boys. Certainly boys from ten to sixteen years of age were not 
 likely to be hurt by them; nor could one anticipate that a boy less- 
 than five years of age would have gone to the cars unaccompanied 
 hy any older person and have climbed upon one of tliem and 
 loosened the brake, so as to set the car in motion. No such thing 
 ever occurred, and certainly no one anticipated that a boy able to 
 do that would have fallen off or jumped ofi in front of the car, so 
 that the car would have run over and killed him. The most of 
 boys would have stayed on the cars so as to get a ride, and this the 
 company has a right to expect." ' This would seem to indicate 
 that the liability of the defendant is to be determined somewhat 
 by the accuracy of his judgment as to the motiv^es that may prompt 
 mischievous boys in trespassing upon his property. 
 
 Section 7S.— Duties Imposed upon the Owners of 
 
 Animals. 
 
 a. At Common Laiv the Owner inust Keep His 
 Cattle on His Own Land.— Fences. 
 
 There is a consideration which seems to show that the obhVa- 
 tion which is put upon the owner of errant cattle should not be 
 taken to be a principle applicable in a general way to the use or 
 ownership of property. It is this: that the owner of such cattle 
 must restrain them at his peril or answer for the natural conse- 
 quences. If not guilty of negligence, he is liable only sub modo, 
 for the injury done by them; that is, he is responsible with regard 
 to tame beasts who have no exceptionally vicious disposition, so 
 far as known, for the grass they eat, and such like injuries, but 
 not, unless»unlawfully in the close of another,'^ for the hurt they 
 ma}' inflict on the person of others — a restriction on liability which 
 is hardly consistent with the notion that this class of cases pro- 
 ceeds from a principle so wide as to embrace all pei'sons whose 
 
 ^Kansaa Cent. R. Co. v. Fltzsimmons, 22 Kan. 686, 31 Am. Rep. 203. 
 ^Meredith v. Reed, 26 Md. 384; Van Leuven v. Lyke, 1 N. Y. 515; Anderson 
 V. Buckton, 1 Strange, 192; Ellis v. Loftus Iron Co. L. R. 10 C. P. 10.
 
 586 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 lawful acts produce, without fault in them, and in an indirect man- 
 ner, ill results which disastrously affect innocent persons. If the 
 principle ruling these cases was so broad as this, conformity to 
 it would require that the person being the cause of the mischief 
 should stand as an indemnifier against the whole of the damage. 
 It would seem, therefore, that this rule which applies to damages 
 done by straying cattle, and which, in the case of an owner exer- 
 cising due care, seems to rest on dicta, and not on express decision, 
 is carried beyond its true bounds, when it is appealed to, as it was 
 in Fletcher v. Rylands^ L. R. 1 Exch. 265, as proof that a person 
 in law is answerable for the natural consequences of his acts, such 
 acts being lawful in themselves, and having been done with proper 
 care and skill.' 
 
 At common law the owner must keep his cattle upon his own 
 land. This includes the brood of all tame and domestic animals^ 
 as they belong to the owner of the dam.' He is the owner of the 
 brood, except where the dam may be temporarily hired, the in- 
 •crease during the term in that case belonging to the usufructuary.' 
 But a bona fide purchaser of the dam at the time the offspring is 
 brought forth is entitled to claim it. " 
 
 In stating the liability of the owners of animals for injury 
 inflicted by them, a classification has been made of animals 
 into those that arey^rte naturcB and those that are domitw naturoe. 
 Those who keep the latter are liable for damages, exceptional in 
 their nature, only when they enter the close of another,^ unless 
 the}' have notice of some vicious propensities.* Those who keep 
 
 ^Marshall v. Welicood, 38 N. J. L. 339. 
 
 ^Arkansas Valley L. & C. Co. v. Mann, 130 U. S. 69, 33 L. ed. 854. 
 
 ^Wliite V. Storms, 21 Mo. App. 288, 4 West. Rep. 739. 
 
 *Meyer v. Cook, 85 Ala. 417. 
 
 ^Decker v. Oammon, 44 Me. 332; Barnum v. Vandusen, 16 Conn. 200. 
 
 ^Van Leuven v. Lyke, 1 N. Y. 515; Hudson v. Roberts, 6 Exch. 697; Kelly 
 V. TiUon, 2 Abb. App. Dec. 495; Corliss v. Smith, 53 Vt. 532; Bell v. 
 Leslie, 24 Mo. App. 661; Vt'ooman v. Lawyer, 13 Johns. 339; Applebee v. 
 Perey, L. R. 9 C. P. 647; Smith v. Causey, 23 Ala. 568; Ecajis v. McDer- 
 mott, 49 N. J. L. 163, 4 Cent. Rep. 559; Le Forest v. Tolman, 117 Mass. 
 109; G/iartwoodY. Greig, 3 Car. & K. 46; Fressey v. Wirth, 3 Allen, 191; 
 Milus V. Dodge, 38 Wis. 300; Flansbury v. Basin, 3 111. App. 531; Kight- 
 linger y. Egan, 75 111. 141; Loomis v. Terry, 17 Wend. 496; Lynch v. 
 McNally, 7 Daly, 128. 73 N. Y. 347; Judge v. Cox, 1 Starkie, 285; Murray 
 V. Young, 12 Bush, 337; Dearth v. Baker, 22 Wis. 73; Worth v. Gillitig, 
 L. R. 2 C. P. 1; Fleming v. Otr, 29 Eng. L. & Eq. 16; Hartley v. Hurri- 
 man, 1 Barn. & Aid, 630; McCaskill v. Mliott, 5 Strobh. L. 196; Logue 
 V. Link, 4 E. D. Smith, 63; Arnold v. Norton, 25 Conn. 93.
 
 Oliap. XX YI.] DUTIES IMPOSED UPON THE OWNERS OF ANIMALS. 587 
 
 the formei', if in fact they are of the species recognized as fero- 
 ■cious, such as tigers, as distinguished from sucli harmless quad- 
 rupeds as rabl)its, although both belong to the q\-a^b fence natures^ 
 are responsible for the injury they do, without an}' special knowl- 
 odge beino; shown in the owner of their character.' Thus bees 
 are fer(E naturce^ and, till reclaimed, are only owned ratione soli. 
 Trover will not lie against a stranger wlio appropriates a hive on 
 land not belonging to plaintiff.' A, without B's permission, put 
 upon a tree on B's land an empty box for bees to hive in. After 
 two years C took the box down, took out a swarm of bees a«d re- 
 placed the box. These facts gave no action of trover to A against 
 C Although bees may be properly still classed among those 
 fercB naturoB, in modern times the bee has become almost as com- 
 pletely domesticated as the ox or cow or dog. Its habits and its 
 instincts have been studied and through the knowledge thus ac- 
 quired it can be controlled and managed with nearly as much cer- 
 tainty as any of the domestic animals; and it must be regarded as 
 coming very near the dividing line, and, considering its usefulness 
 to man, its keeping cannot be regarded as negligent, but to be tol- 
 erated and even encouraged. Where, in an action against the 
 owner of bees for an injury done by them to the plaintiff's horses 
 while traveling along the highway past the place where the bees 
 were kept, it appeared that the bees had been kej)t in the same 
 situation for eight or nine years, and there was no proof of any 
 injury ever having been done by them, but, on the contrary, per- 
 sons residing in the neighborhood had safely passed and repassed, 
 it was held that this rebutted the presumption of any notice to the 
 defendant, either from the nature of the bees or otherwise, that it 
 would be dangerous to keep them in that situation, and that he 
 could not be made liable.* But such danger may be shown 
 in a particular locality. In Olmsted v. lilch, 53 Hun, 638, 
 
 » 1 Hale, P. C. 430; MitcJdll v. AUestry, 3 Keb. 650; Muller v. McKisson, 73 
 N. Y. 195; Bex v. Huggins, 2 Ld. Raym. 1574, 1583; Earl v. Van Alstine, 
 8 Barb. 680; Laverone v. Mangianti, 41 Cal. 138; Decker v. Gammon, 44 
 Me. 322; May v. Burdett, 9 Q. B. 101; Besozzi v. Harris, 1 Post. & F. 92; 
 Congress & E. S. Co. v. Edgar, 99 U. S. 645, 25 L. ed. 487; Woolf v. 
 Cluilker, 31 Conn. 121; Van Leuven v. Lyke, 1 N. Y. 515; Scribner v. 
 Kelley, 38 Barb. 14; Applebee v. Percy. L. R. 9 C. P. 647. 
 
 ' ^Re-vroth v. Coon, 15 R. I. 35, 1 New Eng. Rep. 35. 
 
 *Earl V. Van Alstine, 8 Barb. 630.
 
 588 IMPOSED DUTIES, PERSONAL. [Part IIL 
 
 the parties resided in adjacent houses in the Village of Hobart. 
 Defendant was a bee fancier and in Jnly, 1S87, kept an apiary of 
 140 swarms on his premises, and within iifty feet of the plaintiff's 
 dwelling. The latter complained to defendant that his bees were 
 vicious and offensive insects, which attacked and stung members 
 of his family whenever they appeared out of doors, and that the 
 intruders also annoyed and injured the pet stock upon the prem- 
 ises. Defendant declined to remove or restrain the bees, where- 
 upon plaintiff began an action in the supreme court demanding 
 $l,50t damages for the annoyance already suffered and asking 
 that injunction be issued restraining defendant from any longer 
 maintaining the nuisance. The defendant was a member of the 
 National Bee Keepers' Association, which undertook the defense, 
 recognizing the importance of the question. The trial lasted sev- 
 eral days and the jury found that the trespassers were from the 
 defendant's swarm, and that his apiary was a nuisance, and awarded 
 nominal damages and costs. Thereupon the court ordered the is- 
 suance of a permanent injunction restraining defendant from any 
 longer maintaining the nuisance complained of. From this judg- 
 ment defendant appealed to the general term, where the judgment 
 below was affirmed. 
 
 The law seems to be perfectly settled from early times as to the 
 obligation of the owner of cattle which he has brought on his land;, 
 the owner must keep them in at his pei'il, or he will be answerable 
 for the natural consequences of their escape, — that is, with regard 
 to tame beasts, for the grass they eat and trample upon without 
 inflicting injury to the person of others; for our ancestors have- 
 settled that it is not the general nature of a horse to kick, or of 
 bulls to gore; but if the owner knows that the beast has a vicious- 
 propensity to attack man, he will be answerable for that too, if he 
 be guilty of any negligence which enables the animal to inflict the 
 injury, or the animal invade the close of another and there cause 
 damage.' In the note to Fitzherbert, Nat. Brevium, 128, attrib- 
 uted to Lord. Hale, it is said: " If A and B have lands adjoining, 
 where there is no inclosure, the one shall have trespass against the 
 
 1 Y. B. 20 Edw. IV. 11, pi. 10; Tenant v. Ooldwin. 2 Ld. Raym. 1089, 1 
 Salk. 21, 360; Cox v. Burbrklqe, 13 C. B. N. S. 438, 32 L. J. N. S. C. P. 
 89; May v. Burdett, 9 Q. B. il2; Comyn, Dig. tit. Droit, M, 3.
 
 Oliap. XXVI.] DUTIES IMPOSED UPON THE OWNERS OF ANIMALS. 589 
 
 other in an escape of their beasts respectively,' although wild dogs, 
 etc., drive the cattle of one into the lands of the other." ' 
 
 Blackstone says: " Eveiy nnwarrantal)le entry on another's soil 
 the law entitles a trespass by breaking his close; the words of the 
 writ of trespass commanding the defendant to show canse quare 
 <^lausum fregit. For every man's land is, in -the eye of the law, 
 inclosed and set apart from his neighbor's; and that either by vis- 
 ible and material fence, as one field is divided from another by a 
 hedge; or b}' an ideal, invisible bonndary, existing only in con. 
 templation of law, as when one man's land adjoins to another's in 
 the same field. And every such entry or breach of a man's close 
 carries necessarily along with it some daniage or other; for, if no 
 other special loss can be assigned, yet still the words of the writ 
 itself specify one general damage, viz., the treading down and 
 bruising his herbage. ... A man is answ^erable for not only 
 his own trespass, but that of his cattle also; for if, by his negligent 
 keeping, they sti-ay upon the land of another (and much more if 
 he permits or drives them on), and they there tread down his 
 neighbor's herbage, and spoil his corn or his trees, this is a trespass 
 for which the owner must answer in damages; and the law gives 
 the party injured a double remedy in this case, by permitting him 
 to distrain the cattle, thus damage feasant or doing damage, till 
 the owner shall make him satisfaction; or else by leaving him to 
 the common remedy inforo contentiose, by action." ' 
 
 Chief Justice Beardsley in Tonawanda H. Co. v. Mxingei\ 6 
 Denio, 259, in delivering the opinion of the court, said: "Every 
 unwarrantable entry by a person or his cattle on the land of an- 
 other is a trespass, and that whether the land be inclosed or not." ' 
 
 It is a general rule of the common law that the owner of cattle 
 is bound, at his peril, to keep them off the land of other persons, 
 and he cannot justify or excuse such an entry by showing that the 
 land was unfenced. Fences were designed to keep one's own 
 cattle at home, and not to guard against the intrusion of those be- 
 longing to other people.' 
 
 •Dwyer, 272; Rast. Ent. Dec. 621; 20 Edw. IV. 10. 
 ^Fletcher v. Rylands, L R. 1 Exch. 265. 
 ^3 Bl. Cora. 209-211. 
 
 < ^eaWelhv. Hoicell, 19 Johns. 385; 1 Chitty, PI. 94. 95; Browne, Actions, 369. 
 ^Gale & W. Easem. 297; Rust v. Low, 6 Mass. 94; Bush v. Braiitard, 1 
 Cow. 79, note.
 
 590 IMPOSED DUTIES, PERSONAL. [Part III,. 
 
 The rule of the eonimon law, that every man's land was inclosed^ 
 either by a material fence or by an ideal, invisible boundary, and 
 that every unwarrantable entry thereon by a person or his cattle- 
 was a trespass by breaking his close, was not founded on an arbi- 
 trary regulation, but was considered as incidental to the owner- 
 ship. It is a part of that principle which allows every man the 
 right to enjoy his property free from molestation or interference- 
 by others; it is simply the recognition of a natural right. A per- 
 son owning and occupying land is not vested with the right to en- 
 joy it upon condition that he inclose it by a fence strong enough 
 to keep his neighbors and their stock from breaking into and de- 
 stroying the fruits of his labors. Property is not held by so inse- 
 cure a tenure; but the law surrounds it by an ideal, invisible pro- 
 tection, more potent than any mechanical paling which can be- 
 constructed. The rule is not required to be adopted in order to- 
 be in force. It always exists where the right of private dominion 
 over things real is recognized. It pertains to ownei'ship. The 
 Legislature, in the exercise of the police power of the State, may, 
 no doubt, require the owners of lands to fence them in a certain 
 manner, and in default thereof to withhold from them a remedy 
 for a trespass committed thereon by animals running at large. In 
 a sparsely populated section of country, where there are extensive 
 open commons, and stock-raising is an important industry, public 
 policy often induces the adoption of such a regulation; but to in- 
 sist that one man has a right to permit his stock to go upon the 
 lands of another, if not protected by a material inclosure, is, in 
 effect, a denial of an incident of ownership. No legislation can 
 legalize such a trespass. Legislation of the character referred to 
 goes only to the remedy, and no attempt to extend it further could 
 be justified.' 
 
 As the common law made it the duty of every man to keep his- 
 cattle within the limits of his own possessions, if he failed so to 
 keep them, he failed in discharging an imposed duty; and when 
 they strayed upon the land of another the owner was justly charge- 
 able with a trespass and the land owner upon whose lands his cat- 
 tle trespassed was not guilty of contributory negligence, for the 
 common law did not impose upon the owner of the lands the ob- 
 
 ^Bileu V. Paisley, 18 Or. 47, 4 L. R. A. 840.
 
 Chap. XXVI.] DUTIES IMPOSED UPON THE OWNERS OF ANIMALS. 59 I 
 
 ligation to inclose them as a protection against the beasts of oth- 
 ers, lie miglit, at his option, leave them entirely uninclosed, and 
 it was then as nnlawfnl for the beasts of a neighbor to cross the 
 invisible boundary line as it would be to overleap or throw down 
 the most substantial wall.' Whenever two persons have adjoin- 
 ing fields, and no hedge or fence between them, each must take 
 care that his own beasts do not trespass on his neighbor.^ This 
 rule became a part of the common law in most of American 
 States, and it still remains a part of it, except as legislation has 
 modified or abolished it.' Where beasts unlawfully enter upon 
 the premises of another, and there commit mischief, it is a part of 
 the damage suffered from the trespass, and goes to swell a recov- 
 ery which the unlawful entry justifies.* If a man's cattle, sheep 
 or poultry, or any animals^ in which the law gives him a valuable 
 property, trespass upon another's close, the owner of the animals 
 is responsible for the trespass and consequential damage, unless he 
 can show that his neighbor was bound to fence, and had failed so 
 to do." 
 
 In Kerwhaher v. Cleveland cfc C. R. Co., 3 Ohio St. 179, it is 
 
 ^Wells V. Howell, 19 Johns. 38"); Stafford v. Inc/erHol, 3 Hill. 38; Ellis v. Lof- 
 tus Iron Co. L. R. 10 C. P. 10, 11 Moak, Eng. Hep. 214; French v. 
 Cresswell, 13 Or. 418. 
 
 ^Boyle V. Tamlyn, 6 Barn. & C. 337. 
 
 ^Little V. Lathrop, 5 Me. 356: Lord v. Worrmcood. 29 Me. 282; Avery v. Max- 
 well, 4 N. H. 36; Rud v. Loic, 6 Mass. 90; Thayer v. Arnold, 4 Met. 589; 
 Lyons v. Merrick, 105 Mass. 71; Boston & A. it. Co. v. Brigg.^, 132 Ma.ss. 
 24; Wells v. Eoicell, 19 .Johns. 385; IloUaday v. Marsh, 3 Wend. 142; Angn» 
 Y. Radin, 5 N. J. L. 815; Co.ve v. Bobbins.'^ N. J. L. 384; Neio York &E. 
 R. Co. V. Skinner, 19 Pa. 298; Dolph v. Ferris, 7 Watts & S. 367; Gregg 
 V. Gregg, 55 Pa. 227; Richardson v. Milburn, 11 ]\Id. 340; Brady v. Bad, 
 14 Ind. 317. See Stone v. Kopka, 100 Ind. 458; Williams v. Mich. Cent. 
 R. Co. 2 Mich. 259; Stone v. Donaldson, 1 Pinney, 393; Harrison v. 
 Browyi, 5 Wis. 27; Locke v. First Div. St. Paid & P. R. Co. 15 Minn. 350; 
 Union Pac. R. Co. v. Rollins, 5 Kan. 167; Vandegrift v. Delaware R. Co. 
 2 Houst. 287; Hurd v. Rutland & B. R. Co. 25 Vt. 116. 
 
 *Lyke v. Van Leuven, 4 Denio. 127; Van Leuven v. Lyke, 1 N. Y. 515; Ma- 
 son V. Morgan, 24 U. C. Q. B. 328. 
 
 •Except dogs. State v, Donohue, 49 N. J. L. 548, 8 Cent. Kep. Q2\; Murphy 
 V. Preston, 5 Mackey, 514, 9 Cent. Rep. 146; Broicn v. Giles, 1 Car. & 
 P. 118; Reed v. Edwards, 17 C. B, N. S. 245. But if the owner unlaw- 
 fully enter a clo.se accompanied by his dog, which injures an animal 
 therein, the owner will be liable for the injury without proof of his 
 knowledge of the dog's vicious disposition, as it is the owner's trespass. 
 Green w. Doyle, 21 111. App. 205; Beckwith v. Shordike, 4 Burr. 2092. 
 
 *S{igrill V. Mikcard, 21 Hen. VI. p. 33. pi. 20; Lee v. Riley, 34 L. J. N. S. 
 C. P. 212; Wells v. Howell, 19 Johns. 385; Lyke v. Van Leuven, 4 Denio, 
 127.
 
 592 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 denied that the common-law doctrine, relative to the dutj of the 
 owner of cattle to keep them upon his own grounds, was ever 
 adopted in this country. But in that State the force of the com- 
 mon-law principles has been always denied. In Seeley v. Peters^ 
 10 111. 142, the inapplicability of the common law to the condi- 
 tion of that State and its people is recognized.' And in Buford 
 V. Houtz, 133 U. S. 320, 33 L. ed. 618, it is denied that the com- 
 mon-law doctrine ever applied to the government lands. 
 
 In the absence of a statute changing the common-law rule, ex- 
 <'ept as stated above, a party is not obliged to fence his land be- 
 fore he can maintain an action of damages for trespass by cattle 
 thereon.* 
 
 b. Statutes Mequirijig Land Owner to Fence 
 against Trespassing Domestic Animals. 
 
 In Maine the common-law rule prevails that the owners of cat- 
 tle should keep them in and land owners are not required to fence 
 against trespassing animals.^ This is so also in Massachusetts," 
 New York,' Maiyland," jS'ew Jerse}^,' Indiana,' Michigan," Illi- 
 nois," Yermont,'' Connecticut,'^ Oregon," Kansas'* and North Caro- 
 lina.'^ In California the liability exists without the common law." 
 In Iowa, Texas, Florida, Missouri, Ohio, Mississippi, Colorado and 
 some other States the common-law rule has never been recognized, 
 
 'See also Comerford v. Bupuy, 17 Cal. 310; Logan v. Gedney, 38 Cal. 679; 
 
 titudwell V. Eitch, 14 Conn. 293. 
 ^French v. Cressioell, 13 Or. 418. 
 ^Little V. Lathrop, 5 Greenl. 857. 
 '^Thayer v. Arnold, 4 ]\Iet. 589. 
 ^Stafford v. Incjersol, 3 Hill, 38. 
 ^Richardson v. Milburn, 11 Md. 340. 
 ■>Coxe V. Bobbins, 9 N. J. L. 477. 
 Wrady v. Ball, 14 Ind. 317; ^ 4S34, Ind. Rev. Stat. 1881; Indianapolis, C. & L. 
 
 B. Co. V. Harter, 38 Ind. 557. 
 ^Johnson v. Wing, 3 Mich. 163. 
 ^HfcBridev. Lynd, 55 III. 411. 
 
 ^^ Wilder X. Wilder, 38 Vt. 67:J; Keenanv. Uavanangh, 44 Vt. 2G8. 
 ^"Studwell V. BUch, 14 Conn. 292. 
 
 ^'^French v. Oresswell, 13 Or. 418; Bileu v. Paisley, 18 Or. 47, 4L. R. A. 840. 
 ^*Baker v. Bobbins, 9 Kan. 303. 
 ^=Burgtcyn v. Whifield, 81 N. C. 261. 
 "5aA« V. Garratt, 69 Cal. 146.
 
 Chap. XXYL] DUTIES imposed upon the owners of animals. '593 
 
 but tlie fact tliat tlie owner of land iie<;lects to fence is treated as 
 a license to cattle to enter, the only liability' existing being where 
 the animal breaks through a lawful fence.' 
 
 The matter is, however, generally regulated by statute in the 
 States, which, to more or less extent, modify the common law or 
 limit the recovery under it." Thus, in Mississippi the Code of 
 1S80, § 984, which provides that '•' every owner of cattle, horses," 
 •etc., "shall be liable for all injuries and trespasses committed by 
 animals running at large in a common inclosure," docs not require 
 a lawful fence for the common inclosure;^ and in California an 
 owner of land situated in Santa Clara County, under the Act of 
 April, 1803, as amended in March. 1872, was not recpiired to fence 
 it against cattle belonging to another person.'' And even where 
 legislation has been had as between adjoining proprietors, until 
 the statutory assignment of what each shall l)uild and keep in re- 
 l>air has been made to them respectively, each remains liable at the 
 ■common law for injuries done by his beasts.^ 
 
 "Where the declaration alleged that the defendant's sow and 
 pigs mangled and tore a cow and calf of the plaintiffs so that they 
 ■died, and the evidence tended to show that the injury was com- 
 mitted as alleged, and that it was done while the sow and pigs 
 were trespassing in the plaintiffs' close, the plaintiffs were not al- 
 lowed to recover for want of an averment or proof, a scienter or 
 an allegation of a breach of the plaintiffs' close." But for this 
 defect in pleading or proof he would have been answerable.'' So 
 a commoner mIio puts his beasts upon a common which is not in- 
 
 ^Haughey v. J3"a/"?, 63 Iowa, 96; Wilhifev. Speakman, 79 Ala. 400; Savan- 
 nah, F. & W. R. Co. V. Oeiffer, 21 Fla. 669; Andemon v. Locke, 64 .Miss. 
 283; McP/metersv. Hannibal & St. J. R. Co. 45 Mo. 22; Cleveland, C. d- C. 
 R. Co. V. Elliott, 4 Ohio St. 474; Raiford v. Mississijypi & C. R. Co. 43 Mii^s. 
 233; Morris v. Fmker, 5 Colo. 425. 
 
 ^Seeley v. Peters, 10 111. 130; Brady v. Ball. 14 Ind. 3)7; Warjntr v. Bissell, 
 3 iowa, 396; Wilder v. Wilder, 38 Vt. 678. 
 
 ^Montgomery v. Handy, 63 Miss. 43. 
 
 *nahn V. Gnrratt, 69 Cal. 146. 
 
 K''yxe V. Robbins, 9 N. .1. L. 384; Rust v. Low, 6 jMm'^s. 90; HmtJi, v. Ricker, 
 2 Me. 72; Little v. LatJwoj), 5 Me. 357; Kno.v v. Tucker. 4H Me. 373; Brad- 
 bury v. Gilford, 53 Me. 99; Harlow v. Stinson, 60 Me. 347. See Ayles- 
 worth V. Herrington, 17 Mich. 417; Cooley, Torts, 400. 
 
 ^Van Leuven v. Lyke, 1 N. Y. 515. 
 
 ''Anderson v. Buckton. 1 Strange, 192; Ellift v. Tx>ftm Iron Co. L. R. 10 C. 
 P. 10; Decker v. Oammon, 44 Me. 322; Mafon\. Morgan, 24 U. C. Q. B. 
 328. 
 
 38
 
 59 J: IMPOSED DUTIES, PERSONAL. [Part III. 
 
 closed is bound at his peril to see that his beasts do not stray from 
 the common and trespass upon another man's land.* And even 
 though a person turn his cattle into a highway, in pursuance of a 
 by-law of the town, yet if they escape on the land of another, he 
 will be liable for the damage, unless he shows that they entered 
 the plaintiff's premises through the insufficiency of his fence.* 
 Nor may cattle be driven on prairie land against the owner's will;' 
 and close-herded sheep may not negligently be allowed to tres- 
 pass.* A stranger may be sued as well as the owmer for the tres- 
 pass.* 
 
 In an action for damages done to plaintiff's field by a horse 
 which the defendant was pasturing for hire, and which escaped 
 by his negligence from his pasture to the field of the plaintiff, he 
 was held answerable so far as the damage resulted from the horse's 
 conducting itself as an animal ordinarily would do, and might 
 fairly be expected to do, but so far as the damage resulted from 
 some peculiar viciousness of the horse, he was not responsible.* 
 But for such viciousness of a mule belonging to him, which es- 
 caped at the same time, he was held responsible.' 
 
 If animals belonging to several different owners trespass upon 
 another's land, an action does not lie against them jointly there- 
 for unless one is given charge of the animals;* but separate ac- 
 tions must be brought against each owner for the injury done by 
 his beast.* And in the absence of proof as to how much damage 
 each animal did, the presumption is that each did an equal amount 
 of damao-e.'" Where a strano-er without right took defendant's 
 
 ^Read v. Edicards, 34 L. J. N. S. C. P. 83. 
 
 ^ White V. Scott, 4 Barb. 56; C'oioles v. Balzer, 47 Barb. 563. 
 
 ^Delaney v. Errickson, 11 Neb. 533. 
 
 ^Willardv. Mathesus, 7 Colo. 76. 
 
 2 Roll. Abr. 546, pi. 20; Daiotry v. Huggins, Clayt. 82, pi. 56. 
 
 ^Barnuni v. Vanduseii, 16 Conn. 200; Lyons v. Merrick, 105 Mass. 71. 
 
 ''Lyons v. Merrick, 105 Mass. 71. 
 
 ^Oakes v. Spaulding, 40 Vt. 347. Or in case of partners. Adams v. Hall, 3 Vt. 
 9; Smith V. Jaques, 6 Conn. 530. 
 
 ^Partenheimer v. Van Order, 20 Barb. 479; Van Steenhurgh v. Tobias, 17 
 Wend. 562; Denny v. Gorrell, 9 Ind. 73; Auchrnuty v. Ham, 1 Detiio, 
 495; Buddington v. Shearer, 20 Pick. 477, 22 Pick. 427; Smith v. Mont- 
 gomery, 52 Me. 178. 
 
 ^Tartenheimsr v. Van Order, 20 Barb. 479. See Carroll v. Waiter, 1 Hun, 
 605; McAdams v. Sutton, 24 Ohio St. 333; Kerr v. O'Connor, 63 Pa. 341; 
 Hansburg v. Basin, 3 111. App. 531.
 
 Chap. XXVI.] DUTIES IMPOSED UPON THE OWNERS OF ANIMALS. 595 
 
 animal from his field and released it and it wandered into the close 
 of the plaintiff, the latter was allowed to recover for the injury 
 done bj it.' 
 
 Where dogs of different physical strength belonging to differ- 
 ent owners inflicted injury on sheep, the owner of the stronger 
 dog cannot complain at being called on to pay the larger dam- 
 ages.* 
 
 In actions brought for damages for injury done by cattle break- 
 ing into a field, the state statutes, where the common-law rule doe:* 
 not prevail, make it a condition precedent to recovery that the 
 field be inclosed by hedge or fence.' A fence should be of suf- 
 ficient height to restrain such cattle as are ordinarily kept within 
 inclosures.* Persons familiar with a fence and its operation, from 
 personal observation, can testify as a matter of knowledge that it 
 did operate to keep stock out.* Lot fronts in a city need not, 
 however, be fenced, unless there is an ordinance requiring it.' 
 
 The Statutes of Oregon, which require fields and inclosures to 
 be inclosed with certain kinds of fence, and provide a remedy in 
 case stock or swine break into the same when so fenced, do not 
 appl}' to ditches constructed across public lands in the State for 
 mining purposes. Hence the owner of sheep may beheld in dam- 
 ages for injuries by reason of the sheep running over the same, 
 although there is no proof that they were purposely or negli- 
 gently driven thereon, and the ditches were unfenced.' But the 
 action must be properly brought for the simple trespass, for in an 
 action for trespass for willfully and maliciously driving sheep on 
 the lands of plaintiff to consume and destroy the grass, a charge 
 in substance that if the sheep strayed on the uninclosed lands of 
 
 ^Noyes v. Colhy, 30 N. H. 143, But see Cooke v. Waring, 2 Hurl. & C. 332, 
 where evidence of negligence was required to be sliown ou defendant's 
 part. 
 
 ^Wilbur V. Hubbard, 35 Barb. 303. 
 
 ^Scott V. Grover, 56 Vt. 499; Sfovallv. Emerson, 20 Mo. App. 322, 2 West. 
 Rep. 614; Fenton v. Montgomery, 19 Mo. App. 156, 1 West. Rep. 416; 
 We«sv. TFa^te/-*, 5 Busli, Zh\\Akeri<v. George, 61 111. 376; Little v. Mc- 
 Guire, 38 Iowa, 500; Gorman v. Pacific R. Co. 26 Mo. 445; Mo&re V. 
 White, 45 Mo. 206 ; Duffies v. Judd, 48 Iowa, 256. 
 
 ^Chicago & A. R. Co. v, Utley, 38 111. 410, 
 
 ^Silvarer v. Hansen, 111 Cal. 579. 
 
 ^Detroit v. Beecher, 75 Mich. 454. 
 
 "^Bileu V. Paisley, 18 .Or. 47, 4 L. R. A. 840.
 
 596 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 the plaintiff, or were driven there for the purpose of pasturage, 
 and not for the purpose of maliciously injuring the lands, the 
 plaintiff could not recover, was held to be proper.' 
 
 All agreement to dispense with a partition fence is not the 
 equivalent of a legal fence, so as to justify the killing of stock 
 escaping by negligence of one of the parties, and depredating on 
 the premises and crops of the other. To kill stock unnecessarily, 
 without responsibility for so doing, an actual lawful fence must 
 have been broken, — not merely a contract or agreement to dis- 
 pense with a fence or to treat the dividing line as though it were 
 a fence.'' But the duty may be imposed by covenant or prescrip- 
 tion, and, where it is, the same liability attaches as under the com- 
 mon-law rule, and the person on whom the duty rests will be lia- 
 ble for all damages resulting from his neglect.^ 
 
 G. Fence must not he a Source of Danger to Cattle 
 in Adjoining Field or Highway. 
 
 Although a land owner is not, unless by statute, bound to main- 
 tain any fence at all, yet if he undertake to maintain one, he is 
 boimd to see that it is not made a source of danger to passing ani- 
 mals. It is the duty of a land owner to take notice of the natural 
 propensity of domestic animals, and to exercise reasonable care to 
 prevent his fence from becoming harmful to them by reason of 
 these habits. The fact that a fence was constructed entirely upon 
 defendants' land is no answer in a suit for an injurj'' thus caused 
 if the fence was negligently constructed or maintained. 
 
 In Malloy v. Hihernia Savings dh Loan Sooiety (Cal. A])ril 22, 
 1889), 21 Pac. Rep. 525, the defendant had negligently suffered a 
 privy vault and cesspool to remain open upon its premises, about 
 ten feet from the sidewalk of a public street in the City of San 
 Francisco, Avithout any inclosure, and plaintiff''s minor child, with- 
 out any fault or negligence on his (plaintiff's) part, had fallen into 
 the same and was drowned therein. The demurrer to the com- 
 
 ^Fant V. Lyman- (Moat. Aug. 3, 1889) 23 Pac. Rep. 130. 
 
 ^Tumlin v. Parrott, 83 Ga. 733. See Wilhite v. Speakman, 79 Ala. 400. 
 
 ^Holden v. .SAaMMcA;, 34 Vt. 336; Wells v. HoweU, 19 .Johns. 385; Cowles -v. 
 
 Balzer, 47 Barb. 563; State v. Lamb, 8 Ired. L. 229; Jones v. Wither spoon, 
 
 7 Jones, L. 555.
 
 Chap. XXVI.] DUTIES IMPOSED UPON THE OWNERS OF ANIMALS. 597 
 
 plaint — which stated substantially these facts — was sustained in 
 the court below, and the order reversed on appeal. The decision 
 was based upon the principle tliat one should so use his own prop- 
 erty as not to injure the property of another. Of course, this 
 principle — which is a maxim of common justice, as well as of law 
 — does not create a liability for every injury one may sustain 
 through the use by another of his own property; but where the 
 latter is guilty of a breach of duty which he owes to others in the 
 use of his property, whether by intention or neglect, he is liable 
 for any injury which is occasioned thereb}", if the injury is the 
 natural or probable result of the act, and such as a prudent man, 
 under the circumstances, acting with ordinary care, would have 
 foreseen. Under such circumstances, it is no defense that the prop- 
 erty is used for a lawful purpose.' 
 
 This pi-inciple was applied in Rehler v. Western N. Y. & P. 
 R. Co., 55 Hun, 604, where it was ruled that a railroad company 
 has no right to erect on its line a fence which is a source of danger 
 and probable cause of injury to cattle running in an adjoining 
 Held.-' 
 
 In the last case cited it was held that one w^ho erects and maintains 
 a barb-wire fence, although entirely upon his own land, the wires 
 of which are not properly stretched, but are left hangijig loose in 
 such a way that stock is not likely to see them, and is liable to run 
 upon them and be injured, is guilty of negligence creating a liabil- 
 ity for such injuries. In Firtli v. Bow/hig Iron Co., L. R. 3 C. 
 P. Div. 254, where pieces of defendant's wire-rope fence fell upon 
 plaintiff's land, and his animals were injured by eating it, defend- 
 ant was held liable for the injury. 
 
 In Sisk v. Crumj), 112 Ind. 574, 12 West. Rep. 134, although the 
 Statute in that State expressly recognizes the right to use barb- 
 wire fences, it was ruled that where animals are allowed to run at 
 large by permission of the proper authorities, the maintaining of 
 such a fence in an insecure manner, — with the wires insutficiently 
 stretched through the posts, a«d with no board upon the top of 
 the fence, and at a height that would not prevent animals from 
 
 ^Birge v. Gardiner, 19 Conn. 507; Durham v. Musfiehnan, 2 Blackf. 96, 18 
 Am. Dec. 138; Kanms Cent. R. Co. v. Allen, 22 Kivn. 285. 
 
 *See also Powers v. Harlow, 53 Mich. 507; Fink v. Missouri Furnace Co. 10 
 Mo. App. 69; Atlanta & W. P. R. Co. v. Uudsoii, 62 Ga. 680; Lovelandv. 
 Gardner, 79 Cal. 317, 4 L. R. A. 395.
 
 598 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 attempting to pass it, and where animals are allowed to feed within 
 the inclosnre upon grass growing therein, which would naturally 
 attract animals passing to make an attempt to reach the herbage, — 
 would render the owner liable for the injury of such animals in 
 such attempt, on the ground of negligence in the performance of 
 a duty which he owes to the public generally, and therefore to 
 every member of the community. It is the duty of the owner of 
 such a lot to take notice that horses and cattle might rightfully, 
 by permission of the county commissioners, wander upon the 
 highway, and with this knowledge he has no right to do anything 
 which is reasonably certain to cause injury to such animals. The 
 lot owner is not bound to maintain a secure fence, nor indeed any 
 fence; yet if he does undertake to maintain a fence on the high- 
 way he must not negligently suffer it to become dangerous to 
 passing animals. The liability in that case is placed upon the 
 ground that the fence was so negligently maintained that, under 
 the circumstances, it w-as in effect a trap, in which, it was in a 
 great degree probable, passing animals would be caught and in- 
 jured. It is the dut}' of the land owner to take notice of the nat- 
 ural propensity of domestic animals; and in that case it was the 
 duty of the defendant to take notice of the propensity of horses 
 to seek the pasture within the inclosure, and join other animals of 
 the same kind feeding there. In view of the facts that the board 
 of commissioners authorized animals to run at large, that the de- 
 fendant was charged with notice of this order, that he was bound 
 to know that it was probable that animals wandering on the high- 
 way would seek his pasture, and that the fence was so maintained 
 as to be in effect a trap to passing horses, there was stated a suffi- 
 cient cause of action.' 
 
 d. County Coimnissionpyrs or Local Authorities 
 may he Eiupowerecl to Authorize Cattle to 
 Run at Large.— Driving off Trespassing Ani- 
 mals. 
 
 In many States the boards of county commissioners are empow- 
 ered to enter orders permitting certain kinds of cattle to run at 
 
 'See Durham v. Musselman. 2 Blackf. 96; Young v. Harvey, 16 Ind. 314; Towns- 
 end v. Wathen, 9 East, 277; Jones v. Nichols, 46 Ark. 207, 55 Am. Rep. 575.
 
 Chap. XXVI.] DUTIES IMPOSED UPON THE OWNERS OF ANIMALS. 599 
 
 large. The Legislature unquestionably has power to vest county 
 authorities with power to regulate the running at large of domes- 
 tic animals; ' and where such power is vested in them, it is not 
 necessary to show that plaintiffs fence was a lawful one, unless it 
 be shown by defendant that an order had been made by the board of 
 county commissioners permitting domestic animals to run at large.' 
 
 Under a Statute of North Carolina imposing the duty upon 
 the county commissioners of building and keeping in repair the 
 fence around the territory embraced by the Stock Law, an owner 
 of stock who resides outside of such territory is not liable to have 
 his stock impounded if found therein, where the county commis- 
 sioners have negligently failed to keep the fence in repair.' But 
 it is held in Georgia that the building of the required fence around 
 a district which has adopted the " No-Fence Law,*' as provided for 
 in Ga. Code, § 1455, is not a condition precedent to the operation 
 of the law making it illegal for stock to be at large in such dis- 
 trict." And in Texas it is said that, the common-law doctrine re- 
 quiring the owner of stock to keep them off the land of others not 
 being in force in Texas, the Act of Feb. 15, 1882, to prevent stock 
 running at large in certain districts, applies to any animal or ani- 
 mals found loose in such district, no matter where the owners 
 ]'eside.' 
 
 That hogs are found at large in a township where they are pro- 
 hibited by law from running at large is not conclusive evidence 
 that they are trespassers as contemplated by Kan. Gen. Stat., chap. 
 105, § 46. If it is by the deliberate or negligent acts of the owner 
 thsy are to be considered as running at large; but if by accident 
 without the fault of the owner, they are not to be so considered.* 
 
 Where, without the fault of the land owner, animals trespass 
 upon his land, lie may use reasonable means for their removal to 
 the highway.^ But if by reason of his defective fence the cattle 
 
 > Welch V. Bowen, 103 Ind. 2o2, 1 West. Rep. 305; Knfe v. Letter, 103 Ind. 
 
 138, 1 West. Rep. 165; Si.sk v. Crump, 112 Ind. 504, 12 West. Rep. 137. 
 '^Atkinson v. Mott, 102 Ind. 431, 3 West. Rep. 307. 
 ^Coor V. Rogers, 97 N. C. 143. 
 *HolUman v. Kingery, 81 Ga. 624. 
 '•Anderson v. Locke, 64 Miss. 283. 
 
 ^Leavenworth, T. & 8. W. R. Co. v. Forbes, 37 Kan. 448. 
 ''Clark V. Adams, 18 Vt. 425; Lord v. Wormwood, 21) Me. 283; McTntire v. 
 
 Plaisted, 57 N. H. 606; Humphrey v. Douglass, 10 Yt. 71.
 
 600 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 are not trespassers under the Statute, as, if they reach his land 
 through defective partition fences which he was negHgent in not 
 maintaining, he must return them to his neighbor's land.' lie 
 may remove animals coming upon his land through his defective 
 fences to the highway, but may not drive them an unreasonable 
 distance thereon.* 
 
 e. Impounding Domestic Animals. 
 
 In the States various statutes are in force authorizing the taking 
 up of cattle running at large or trespassing, and providing for no- 
 tice of the fact, and sale of the animals, when not reclaimed, to 
 pay damages suifered and for expense of keeping them. But 
 where, without fault of the owner, a domestic animal passes from 
 such owner's inclosure, over or tlirough a line fence, into the in- 
 closure of an adjoining proprietor, and thence through a gap in a 
 fence into the inclosure of another and adjacent proprietor, he is 
 not running at large contrary to the provisions of such statutes, 
 and no person is authorized to take up and confine him until the 
 owner pay or tender compensation or other charges.' 
 
 In case of trespass of cattle on uninclosed land the owner is not 
 authorized to seize them for the enforcement of payment of dam- 
 ages and costs under the statute.'* 
 
 Indeed, power to impound and forfeit domestic animals must 
 be expressly granted to a municipal corporation ; and laws or or- 
 dinances authorizing the officers of the corporation to impound, 
 and, upon taking specified proceedings, to sell, the property, are 
 penal in their nature, and where doubtful in their meaning will 
 not be construed to produce a forfeiture of the property, but rather 
 the reverse. Thus, if the pound keeper sells without giving tlie 
 requisite notice, or for the full length of time required, "he is lia- 
 ble, although the owner sustains no actual injury from the omis- 
 sion; or the owner may treat the sale as void and recover the 
 property.* 
 
 ' '^Knorr v. Wagoner, 16 Ind. 414. 
 
 ^Butter V. Henry, 46 Ohio St. 273. 
 
 ■^Anderson v. Worley, 104 lud. 165, 1 West. Rep. 833; Barrett v. Dolan, 71 
 Iowa, 94. 
 
 ^ White V. Tallman, 26 M". J. L. 67; Willie v. Ler;ris, 45 111. 289; Rounch v. 
 Stetson, 45 Me. 596; Gihnore v. Holt, 4 Pick. 258; Rounds v. Mansfield, 38 
 Me. 586; t-m th v. Gatis, 21 Pick. 55; 1 Dillon, Mun. Corp. 216.
 
 Chap. XXYI.] DUTIES imposed upon tii k ownkrs of animals. 001 
 
 The burden is upon defendiiiit, in an action again.st a city, 
 to recover the vaUie of an animal which was sold under an ordi- 
 nance which provides for the impounding and sale of animals 
 found running at large in the city, to show that all the rerpiire- 
 ments of the ordinance, including the posting of notices of sale, 
 were strictly complied with.' 
 
 Officers must use the public pound.'' The marshal cannot del- 
 egate his authority to others to impound for him generally, and in 
 his absence, but may have assistants to act in concert with him.' 
 
 In New Hampshire, if ci-eatures are found "doing damage," 
 they may be impounded, and appraisers are to ascertain "whether 
 any damage was done;" but the statute contemplates actual, and 
 not merely nominal, damage, to justify impounding." Abridge- 
 ment of the recpiired notice for the shortest period avoids the sale, 
 aiid so does a sale, at one bidding, of two animals having different 
 owners.* So actual knowledge, by the owner of the beasts, of the 
 impounding thereof, is not equivalent to the written notice re- 
 quired by the statute," 
 
 f. Authority to Impound and Sell Strayed Domes- 
 tic Animals, 
 
 Towns in Colorado incorporated under General Statutes and 
 under the Amendatory Act of 1879 have the power to authorize 
 the impounding and summary sale of cattle, etc., found running 
 at large contrary to ordinance.'' 
 
 The ordinance of Kansas City authorizing the impounding of 
 cattle running at large within the city limits is applicable to the 
 territory annexed to the city by extension of its limits.* 
 
 Under a city ordinance of the City of Mobcrly, Missouri, pro- 
 viding for the impounding of hogs found running at large, giving 
 
 ^Fort Smith v. Dodson (Ark. May 25, 1889) 4 L. R. A. 252; Clark v. Lewis, 
 
 35 111. 417; Coffin v. Vincent, 12 Cush. 98; Mone v. Reed, 28 Me. 481. 
 '^ Collins V. Larkin, 1 R. I. 219. 
 ^Jackson v. Morris, 1 Denio, 199. 
 ^Onyood v. Green, 33N. H. 318. 
 ^ Clark V. Leiris, 35 111. 417. 
 
 ^Coffin V. Field, 7 Cush. 355: 1 Dillon, Mun. Corp. 21(3. 
 ''Brophy V. Uyatt, 10 Colo. 223. 
 ^Kelly V. Meeks, 87 Mo. 396, 2 West. Rep. 507.
 
 •602 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 five days for the owner to redeem, and providing for sale of the 
 impounded hogs at auction after three days' notice bj' hand-bills, 
 unless the hogs are kept in the pound five full days after being 
 impounded, and advertised three days after the expiration of the 
 iive days' grace, the sale will be unauthorized and void/ 
 
 The township trustees may sell trespassing animals to pay dam- 
 ages, without giving the owner notice of the amount of damages 
 and demanding payment.'' The object of such statutes is to co- 
 erce owners of domestic animals to keej) them within their inclos- 
 iires. It has no reference to estrays, but aj)plies to animals run- 
 ning at large in counties where there is no order authorizing the 
 same.* Statutory provisions as to impounding animals must be 
 strictly complied with.'' 
 
 g- Eights of Owner of Impounded Animals. 
 
 The owner cannot legally break pound and rescue animals.* Re- 
 plevin does not lie against a pound keej)er, at common law, while 
 the creatures are in his legal custody." But it does lie if he vol- 
 untarily parts with his legal control over them or if he impounds 
 them in any other places than those prescribed by the law, as, for 
 example, in his pasture or barn, although this be done the more 
 conveniently to furnish them with food and drink.'' 
 
 h. Municipal Ordinances Regarding Strayed Do- 
 mestic Animals. 
 
 By virtue of its police power a municipal corporation may pass 
 an ordinance imposing a fine upon the owner of any animal found 
 astray or at large within the limits of the corporation.* 
 
 1 White V. Hanwrth, 21 Mo. App. 439, 4 West. Rep. 789. 
 
 ^Miller v. Dale, 73 Iowa, 470. 
 
 ^Jones V. Glouser, 114 lud. 387, 14 West. Rep. 286. 
 
 '^Nafe V. Leiter, 103 Ind. 138, 1 West. Rep. 165. 
 
 ^Co7n. V. Beale, 5 Pick. 514; Field v. Coleman, 5 Cush. 267; 1 Dillon, Mua. 
 
 Corp. 217. 
 «Co. Litt. 47 b, 145 b; 1 Ohitty, PI. 159; Pritchard v. Stevens, 6 T. R. 532; 
 
 Ksley V. Stubbs, 5 Mass. 283; Smith v. Huntington, 3 N. H. 76. 
 ''Bills V. Kinson, 21 N. H. 448. 
 ^Third Municipality v. Blanc, 1 La. Ann. 385; Case v. Hall, 21 111. 633; Com. 
 
 V. Bean, 14 Graj% 52; Com. v. Curtis, 9 Allen, 266; Eoberts v. Ogle, 30 111. 
 
 459; McKee v. McKee, 8 B. Mon. 433; Waco v. Powell, 33 Tex. 258.
 
 ■Chap. XXYI.] DUTIES imposed upon the owners of animals. 003 
 
 A municipal corporation witli power to pass '' all by-laws deeined 
 necessary for the well regulation, health, cleanliness, etc.," of the 
 borough, and witli power to '" abate nuisances," is held to have no 
 authority to pass a by-law restraining cattle from running at Large 
 where such a by-law is in contravention of the general law of the 
 State.' 
 
 In Illinois it has been decided that a town, authorized 1)V its 
 charter to declare what should be nuisances, and to provide for 
 the abatement thereof by ordinance, may pass an ordinance de- 
 <;laring swine running at large within the corporation to be nui- 
 sances, and providing for the taking up of the same." A by-law 
 ' ^prohibiting swine running at large in a city is presumptively rea- 
 -sonable as a sanitary or police regulation.* The marshal must 
 •ftrictly comply with the ordinance, or he becomes a trespasser 
 from the beginning.* 
 
 i. Damages for Trespass by Animals Impounded. 
 
 The damages appraisable for trespasses by swine are only such as 
 liave been occasioned by the swine at the time of the trespass for 
 which they were impounded, and can be determined by appraisers 
 without proof by witnesses.^ 
 
 A land owner taking up, under the statute, swine running at 
 large, is not barred from suing their owner for injuries committed 
 by them.* 
 
 i6Mm«v. Hatch, 18 Ohio, 523; Canton v. Ni»t, 9 Ohio St. 439. 
 
 '^Roberts v. Ogle, 30 III. 4o9. 
 
 ^Com. V. Bean, 14 Gray, 52; 1 Dillon, Mun. Corp. 370. 
 
 * Adams V. Adams, 13 Pick. 384; Gilmore v. ITolt, 4 Pick 259; Smith.v. Gates, 
 
 21 Pick. 55; Sfierman v. Braman, 13 Met. 407; Cojfin v. Field, 7 Cush. 
 
 355: Brightman v. Orinnell, 9 Pick. 14; Field v. Jacobs, 12 Met. 118; 'Wild 
 
 V. Skinner, 23 Pick. 255; Pickard v. Howe. 12 Met. 198; 1 Dillon, Mun. 
 
 Corp. 217. 
 ^Warne v. Oberly, 50 N. J. L. 108, 9 Cent. Rep. 502. 
 ^Bobuion V. Fettermau (Pa. May 14, 1888) 12 Cent. Rep. 566.
 
 CHAPTER XXVII. 
 
 NEGLIGENCE IN CONTROL OF DOMESTIC ANIMALS. 
 
 Sec. 79. Lialility of Oioners of Animals for Their Trespasses. — 
 
 Scienter. — A ccident. 
 Sec. 80. Care of Domestic Aiiimals under Special Circumstances. 
 Sec. 81. Horses Exposed in Public Places. 
 
 Section ^l^.— Liability of Owners of Animals for 
 Their Trespasses.— Scienter.— Accident. 
 
 The owner of domestic animals not being liable at common law 
 for injuries committed by tliem, except within another's close/ 
 unless he is supposed to have knowledge of their tendency to com- 
 mit such injuries, or he has been guilty of negligence,^ evidence 
 may be introduced as to the propensity of the animal to injure 
 mankind, and as to defendant's knowledge of such inclination, and 
 his negligence after such knowledge. It is not necessary that the 
 vicious acts of a domestic animal, brought to the notice of the 
 owner, so as to charge him with having contributed to the injury 
 by his negligence in not putting such restraint upon the animal as 
 to prevent a repetition of his assault, should be precisely similar 
 to that upon which the action against him is founded.' If this 
 were the rule there would be no actionable redress for the first in- 
 jury of a particular kind committed by such animal, for its owner 
 would necessarily be exempt from all liability until it should cora- 
 
 ^Lylce V. Van Leuven, 4 Denio, 127; Van Leuven v. Lyice, 1 N. Y. 515; Mason 
 V. Morgan, 24 U. C. Q. B. 328; Wells v. Howell, 19 Johns. 385; Lee v. 
 Pdlerj, 34 L. J. N. S. C. P. 212. 
 
 '^Meredith v. Reed, 26 Ind. 334; Dolfinger v. Fishhack, 12 Bush, 474; Frazer 
 V. Eimler, 2 Hun, 514; May v. Bwrdett, 9 Q. B. 101. If negligence be 
 proved no proof of knowledge of the viciousness or even of viciousness 
 is necessary. Lyons v. Merrick, 105 Mass. 77. 
 
 ^Jenkins v. Turner, 1 Ld. Raym. 109; Blackman v. Simmons, 8 Car. & P. 
 138; Thomas v. Morgan, 2 Cromp. M. &, R. 496; Williams v. Moray, 74 
 Ind. 25, 29; Congress & E. Spring Co. v. Edgar, 99 U. S. 645, 25 L. ed. 487; 
 Cockerham v. Nixon, 11 Ired. L. 269.
 
 Cliap. XXYII.] LIABILITY OF OWNERS OF ANIMALS. 605 
 
 niit another injury of exactly like character. Neither is it neces- 
 sary in order to fasten the lial)ility upon the owner that he have 
 notice of a previous injury to others." 
 
 "Where the class to which a particular animal which has inflicted 
 an injury belongs is harndess, the owner can oidy be held answerable 
 by proof that he was aware of the inischievons disposition of the 
 particular animal." The owner must be shown to have had notice 
 ■of its vicionsness, or to have been wanting in the exercise of rea- 
 sonable care.' The habit of an animal is, in its nature, a continu- 
 ous fact, to be shown by proof of successive acts of a similar kin<I/ 
 
 It is the jn-opensity to commit the mischief that constitutes the 
 danger,' and therefore it is sufficient if the owner has seen or 
 heard enough to convince a pian of ordinary prudence of the ani- 
 mal's inclination to commit the class of injuries complained of." 
 It is sufiicient that the owner has good reason to suppose that the 
 animal may so act.' The question in each case is whether the 
 notice was sufficient to put the owner on his guard and to require 
 him as an ordinarily prudent man to anticipate the injury which 
 has actually occurred. Hence, it is unnecessarj^ to prove more 
 than that he has been given cause for supposing that the animal 
 may so conduct itself.' 
 
 in Brice v. Bauer, 108 K Y. 428, 11 Cent. Rep. 327, it is said 
 that the very purpose for which the owner keeps a dog will often 
 charge him with knowledge of his character, and he will therefore 
 be chargeable with negligently keeping him, although it does not 
 
 ^Rider v. White, 65 N. Y. 54; Qodeau v. Blood, 53 Vt. 251; Worth v. GUling 
 
 L. R. 2 C. P. 1; Judge v. Cox, 1 Stark. 285. 
 ^Buxendin v. Sharp, 2 Salk. 662; Cox v. Burbridge, 13 C. B. N. S. 430, 32 L. 
 
 J. N. S. C. P. f^9; Mason v. Keeling. 1 Ld. Rayni. 606; Hudson v. Roberts. 
 
 6 Exch. 699, 20 L. J. N. S. Excb. 2m;- Jackson v. SmitJison, 15 Mees. & 
 
 W. 561. 
 ^Moj/nakan V.Wheeler, 117 N. Y. 285; State v. Donohue, 49 N. J. L. 548, 8 
 
 Cent. Rep. G21; Murphy v. Preston, 5 Macke}', 514, 9 Cent. Rep. 146; 
 
 Cox V. Murphy, 82 Ga. 623. 
 *Eennon v. Gilmer, 131 U. S. 22, 33 L. ed. 110. 
 K\rCa>-kill V. Elliott, 5 Strobh. L. 196. 
 ^ Rider v. White, 65 N. Y. 54; Godean v. Blond, 52 Yt. 251; Worth v. GUling, 
 
 L. R. 2 C. P. 1; Jtidge v. Cox, 1 Stark. 285; Keightlinger v. Egan, 65 111. 
 
 235; Buckley v. Leonard, 4 Denio, 500; Applebee v. Percy, L. R. 9 C. P. 
 
 647. 
 •'Kittredge v. Elliott, 16 N. H. 82; Reynolds v. Ilussey, 64 N. II. 64. 2 2s ew 
 
 Eag. Rep. 722. 
 ^Kittredge v. Elliott, 16 N. H. 82.
 
 606 IMPOSED DUTIES, PERSONAL. [Part IIL 
 
 appear that he has actuall)' bitten another person before he bit the 
 phiintiff/ In Buchley v. Leonard, 4 Denio, 500, an action for 
 daiiiages for injuries inflicted by a dog, it appeared among other 
 things " tliat for the most part the defendant had kept his dog 
 chained up in the day time and in his store nights," and the de- 
 fendant having had a verdict, it was reversed, the court saying, 
 aside from the proof that the defendant had notice of the dog's 
 disposition, " the fact that he usually in the day time kept him 
 confined, and in the night kept him in his store, is strong evidence 
 that he was fully aware that the safety of his neighbors would be 
 . endangei'ed by allowing him to go at large." 
 
 The question of knowledge by the owner will often turn on 
 whether his information of a disposition on the part of the animal 
 to do one act should warn him of the probability that it would do 
 the act which caused the injury complained of. This must be a 
 question of fact and of reasonable inference as to whether the in- 
 jury the animal was disposed to commit was substantially like in 
 character to the one committed.^ Knowledge that a dog will worry 
 sheep is no notice that it will attack mankind; or that a horse is 
 not easily controlled may not indicate that he is liable to bite or 
 kick.^ But a boar accustomed to bite animals might be expected 
 to bite a horse,* If a bull gore animals it may attack men.^ If 
 a dog kill one kind of animal it may kill another species," but it 
 is not likely to attack men.' But if the dog bite in play, it may 
 bite in anger; ' for if there is proof of a disposition to do a special 
 injury, the actual accomplishment of it need not be shown.' The- 
 
 'Citing Worth v. Gilling, L. R. 2 C. P. 1, in which the court says: "The 
 
 defendants admitted that the dog was purchased for the protection of 
 
 their premises. Unless of a fierce nature he would hardly have been 
 
 useful for that purpose.'' 
 ^Eeynolds v. Hussey, 64 N. H. 64, 2 New Eng. xiep. 722; Mann v. Weiand^ 
 
 81* Pa. 243. 
 ^Spray v. Ammerman, 66 111. 309; Hartley v. Halhoell, 2 Stark. 212; Keight- 
 
 linger v. Egan, 65 111. 235; Ttcigg v. Eyland, 62 Md. 3«0, 
 ^Jenkins v. Tamer, 1 Ld. Raym. 109. 
 
 ^Earhart v. Toungblood, 27 Pa. 331; Gjckerlmm v. Nixon, 11 Ired. L. 269. 
 ^ Pickering v. Orange, 2 111. 492; Thomas v. Morgan, 2 Cromp. M. & R. 
 
 496. 
 "^KeightUnger v. Egan, 65 111. 235; Twigg v. Ryland, 62 Md. 380. 
 ^State V. McDermott, 49 N. J. L. 163, 4 Cent. Rep. 559. 
 ''M'Oaskillv. Elliott, 5 Strobh. L. 196; Flansbarg v. Basin, 3 III. App. 531; 
 
 Worth V. Gillirig, L. R. 2 C. P. 1.
 
 Chap. XXVII.] CARE OF DOMESTIC ANIMALS. 607 
 
 question of knowledge is one of fact for tlie jury to deterniiiio 
 from the evidence.' 
 
 An accidental injury will neither render the owner responsihle 
 nor constitute notice of an evil hahit.^ But that the injury was 
 accidental will not excuse one who keeps a vicious watchdog.' 
 
 Section SO.— Care of 'Domestic Animals Under 
 Special Circumstances. 
 
 ■ Naturally the care of animals varies in proportion to the man- 
 ner in which they are exposed. Thus, a horse in the street of a 
 city must be more carefully guarded than upon a country road.* 
 Unless the owner have notice of his vicious disposition, it is not 
 negligence per se to permit him the usual freedom, even in public 
 places.* If he have notice of such habits as will render the ex- 
 posure dangerous to others, it is negligence.' 
 
 One driving his domestic animals along the public highway is 
 bound to observe due care, and if, notwithstanding he is guilty of 
 no negligence, they escape from him and go upon private grounds, 
 he is not responsible, provided he removes them within a reasona- 
 ble time. And what is a reasonable time must depend upon all 
 the circumstances.' 
 
 In Leame v. Braij, 3 East, 595, Lord Ellenborough said: "If 
 I put in motion a dangerous thing, as, if I let loose a dangerous 
 animal, and leave to hazard what may happen, and mischief ensue 
 to any person, I am answerable in trespass." One who ]iermits 
 his horse to go at large in the pul)lic highway, although he is not 
 vicious, without a keeper, is held guilty of negligence in Massa- 
 
 ^Godeau v. Blood, 52 Vt. 251'. 
 
 ^Meredith v. lieed, 26 Ind. 334; Jonen v. Owen, 24 L. T. IST. S. 587; Frazer v. 
 
 Kimler, 2 Hun, 514; Sanders v. Tea:p6, 51 L. T. N. S. 203; Dolfiuger v. 
 
 Fullback, 12 Bush, 474. 
 ^Laverone v. Mangianti, 41 Cal. 138. 
 *Lynch v. Nurdin, 1 Q. B. 38. 
 ^Cox V. Burbridrje, 13 C. B. N. 8. 430; Bearth v. BaJcer, 22 Wis. 73; Vroo- 
 
 manv. Lawyer, 13 Johns. 339; Smith v. Causey, 22 Ala. 5(58. 
 'Bei/nolds v. Ilussey, 64 N. H. 64, 2 New Eng. Rep. 723; Dickson v. McCoy, 
 
 39 N. Y. 400; LeForest v. Tolman, 117 Mass. 110. 
 ''Ooodwyny. Cheveley, 4 Hurl. & N. 631; Cooley, Torts, 401. In Ficken v. 
 
 Jones, 28 Cal. 018, the utmost care is required in driving cattle in public 
 
 streets to avoid injury to travelers.
 
 €08 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 chusetts and is responsible for its kicking and killing a sucking 
 colt, which was following its dam, led by her owner in the high- 
 way.' 
 
 It was ruled in Linnehan v. Sampson, l'i6 Mass. 506, that in 
 order to recover in an action for injuries received from defend- 
 ant's bull, the plaintiff must prove that the bull had such propen- 
 sities, known to the defendant, as caused him to be a dangerous 
 animal when led by one person only, in the day time, upon the 
 streets of a city, in the manner he was led; and also, that it must 
 be proved that, in thus leading the bull, the defendant's servant 
 was negligent, in view of the propensities of the bull known to 
 the defendant, or of the known, ordinary and usual disposition 
 and propensities of such animals. It might well be that, previ- 
 ously to the injury, the defendant had had no trouble in manag- 
 ing the animal, and no knowledge of anything specially or pecu- 
 liarly vicious in his habits or inclinations. But the jury may have 
 believed that he knew, what is a matter of common knowledge, 
 that a bull is an excitable and powerful animal, and that, if from 
 any accidental or unexjDected cause he should become excited while 
 led or driven through a public street, he might be dangerous.^ 
 There was testimony in that case to the effect that the defendant 
 had said that it was careless so to lead the bull through the streets, 
 and that he ought to have been tied behind a wagon, as he had 
 once been before. The jury might well have considered this as 
 an admission that he knew that the animal needed to be kept un- 
 der control, and also that he knew that the control which his serv- 
 ant had applied for the purpose of leading him through the 
 streets was insufficient. In Lyons v. Merrich, 105 Mass. 71, it 
 w^as held that the owner or keeper of animals of a vicious disposi- 
 tion or mischievous habits, of which the owner had previous ac- 
 tual or implied notice, is bound at his peril to keep them at all 
 times and in all places properly secured, and is responsible to any- 
 one who, without fault on his own part, is injured by them. In 
 the case of Ilewes v. McNamara, 106 Mass. 281, the driver of a 
 cow through the pul)lic streets was guilty of negligence and was 
 
 ^Barnes \. 67w?«?i, 4 Allen, 444; McDonald v. Siielliny. 14 Allen, 297; Kel- 
 logg V. Chicago & N. W. U. Co. 26 Wis. 280. See Waters v. 3foss, 12 Cal. 
 535, 73 Am. Dec. 561, note. 
 
 «See Hudson v. Roberts, 6 Exch. 697; Smith v. Matteson, 41 Hun, 216.
 
 Chap. XXYII.] CARE OF domestic animals. 609 
 
 held liable, the scienter beiag shown. And it was said in Linne- 
 han V, Sampson^ supra, that if the jury were satisfied that the 
 defendant knew, or ought to have known, that the bull had dan- 
 gerous propensities, it is unnecessary to prove that on any previous 
 occasion he had actually endangered the life or limb of any person.' 
 
 If at certain seasons animals are more dangerous and more in- 
 clined to break the close, there must be special care at that time 
 to restrain them. "Greater care is required to be taken of a stal- 
 lion than of a mare." " If an animal is inclined to jump over or 
 break down lawful fences it must be restrained, and this is the only 
 fence one is bound to maintain under statutory provisions.' 
 
 Where plaintiff walking in a public street, wearing a red hand- 
 kerchief, was gored by a bull, and it was shown that the owner 
 knew of the propensity of the bull to run at anything red, although 
 the animal was ordinarily gentle and quiet, and was not known to 
 have gored any person previously, an action for damages suffered 
 was maintainable.* 
 
 In an action for personal injuries from a bull, it is proper to 
 charge that, notwithstanding the animal was not actually vicious 
 up to the time of the injury, and that defendant had no knowl- 
 edge of any viciousness, yet in view of the known and or- 
 dinary propensities of such an animal, if the manner of driving 
 and managing the bull was negligent, the ■ plaintiff may recover, 
 in the absence of contributory negligence on his part.' "Where a 
 bull is not shown to have vicious propensities, but is shown to be 
 wild, and to have been tied head and foot at the time of the in- 
 jury, and the owner had notice that it would be safer to lead him 
 than to drive him, it is for the jury to say whether driving him 
 on the highway was negligence." To give to a mischievous or 
 malicious animal the freedom of an open field, with opi^oriunity 
 to molest every person who may have occasion to go into or ])ass 
 through the field, is not such confinement as the law requires.' 
 
 •See Woi-th v. GilUnf], L. R. 2 C. P. 1. 
 
 "^Meredith v. Reed, 26 Ind. 334. See Congress <& E. Sprinfj Co. v. Edgar, 98 
 
 U. S. 645, 35 L. ed. 487; Mclhaine v. Lantz, 100 Pa. 566. 
 ^Hine v. Wooding, 37 Conn. 123. 
 
 *State V. McDermott, 49 N. J. L. 163, 4 Cent. Rep. 559. 
 * ^Barnum v. Terpening, 75 Mich. 557. 
 ''Oraham v. Payne, 122 Ind. 4U3. 
 39
 
 610 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 Evidence of several witnesses that a ram had attempted to butt 
 persons, and of one witness that the animal butted him and he so 
 informed the owner, is sufficient to show notice of the animal's 
 propensities.* 
 
 Section SI.— Korses Exposecl in Public Places. 
 
 Evidence having been first offered to show that a horse has been 
 restive and unmanageable previous to the occasion in question^ 
 testimony that he subsequently manifested a similar disposition is 
 competent to prove that his previous conduct was not accidental 
 or unusual, but the result of a fixed habit at the time of the acci- 
 dent.' 
 
 In an action for injury to the plaintiff by the defendant's horse 
 striking him with its fore feet, proof that the defendant had 
 knowledge that the animal was of a vicious disposition and " a 
 notorious kicker" was suflicient to authorize a conclusion by the 
 jury that the defendant had sufficient knowledge of its vicious 
 nature and propensity to make him liable for its subsequent attack 
 on plaintiff in consequence of that nature and propensity;' and if 
 the owner know the horse to be frisky and playful, and inclined 
 to throw out his heels in mere wantoimess, he will be liable for ex- 
 posing the public to injury, as by leading two nervous and playful 
 horses through the street by one halter.^ 
 
 It is not an essential element of culpable negligence that the 
 defendant should have anticipated that his carelessness would have 
 injured another.* The question is not what he knew or antici- 
 pated, but what he was bound to know." One in charge of a 
 horse is bound to know and act in reference to the generic qual- 
 ities of horses, and hence he is bound to anticipate that his horse 
 might and probably would become frightened and run if Le left 
 
 ^Graham V. Payne, 123 Ind. 403. 
 
 ^Kennon v. Gilmer, 131 U. S. 22, 33 L. ed. 110. 
 
 ^Reynolds v. Russey, 64 N. H. 64, 2 New Eoiz;. Rep. 723; LeForest v. Tol- 
 
 man, 117 Mass. 110; Dickson v. McCoy, 39 N. Y. 400. 
 *Pickens v. Diecker, 21 Ohio St. 212. See Dickson v. McCoy, 39 N. Y. 
 
 400. 
 ^Stebbins v. Walker, 46 Mich. 5. 
 ^Submarine Tel. Co. v. DLcon, 15 C. B. K S. 759; Hill v. Fi/iwr, 118 Mass. 
 
 251; Dygert v. Bradley, 8 Wend. 469; Pittsburgh v. Grier, 22 Pa. 54.
 
 Cliap. XXYII.] HORSES EXPOSED IN TUBLIC PLACES. 611 
 
 him unrestrained.' If defendant knows his horse is exceptionally 
 qnick and speedy, he is bound to provide against sudden starting, 
 as by tlie intervening act of third persons, such as snapping a whip,* 
 or by falling icicles," or by being struck by a passer-by,* or by 
 dangerous instruments being removed from the road.' But if 
 the horse, notwithstanding due care, become uncontrollable, the 
 owner is not responsible.' 
 
 Wliere the plaintiff left a highly spirited horse unhitched and 
 unattended in a public street, and defendant in passing with his 
 horse and carriage jostled plaintiff's carriage, causing the plaintiff's 
 horse to run away, overturning his carriage, while it was held tliat 
 the court properly refused to charge the jury that the plaintiff was 
 guilty of negligence as a matter of law in leaving so highly spir- 
 ited a liorse in the public street unhitched and unattended, yet on 
 appeal it was said, in affirming the doctrine, that the burden of 
 proof is upon the plaintiff to show that the injury occurred with- 
 out contributory negligence on his part, and that, as the defendant 
 had a right to have the jury informed as to what facts the plaintiff 
 must prove in order to recover, he had a right to require the court 
 to instruct them that it was incumbent on the plaintiff to prove a 
 want of such concurring negligence on his part.'' And in affirm- 
 ing the rule in Dexter v. 21cCready, 54 Conn. 171, 2 New Eng. 
 Rep. 83S, it is said that the defendant was bound to consider, in 
 the means adopted to prevent the escape of his horse, not only the 
 character and disposition of his horse and the fact that he was in 
 the public street, but to anticipate what might reasonably liappen 
 in such a place, the liability of noises and occurrences at which 
 his horse might be startled and the danger to the persons and 
 property of those passing, or who would be likely to be passing or 
 driving, in the streets, should his horse escape. 
 
 Even if the whole risk were upon the owner it would still be 
 i-ash folly for him to omit the usual precaution of hitching his 
 
 ^Goodman v. Oay, 15 Pa. 194. 
 
 ^McCahUl V. Eipp, 2 E. D. Smith, 413. 
 
 ^Bigelow v. Reed, 51 Me. 325. 
 
 *lllklge V. Goodwin, 5 Car. & P. 192. 
 
 ^Clark V. Chambers, L. R. 3 Q. B. Div. 327. See also Duniels v. Potter, 4 
 
 Car. & P. 202; BUI v. Smith, 39 Conn. 212. 
 ^Sullivan v. Scripture, 3 Allen, 5fj4; Goodman v. Taylor, 5 Car. it P. 410. 
 ''Fark v. O'Brien, 23 Conn. 339.
 
 612 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 horse or its equivalent, and when such omission is a menace to 
 both life and property, it is extreme recklessness,' 
 
 The owner of a horse which is left loose in a busy street is lia- 
 ble to one injured by him while running away, although his fright 
 was caused by the intervention of the third parties who attempted 
 to capture him. That the owner stood watching his horse from 
 the distance of five or six feet will not excuse his negligence in 
 leaving him unfastened." If a man chooses to leave a cart stand- 
 ing in the street, he must take the risk of any mischief that is 
 ■done.' If the horse do not run away, the question of negligence 
 in leaving him unhitched, where he does an injury, is for the jury, 
 although courts sometimes hold it negligence in law where the 
 horse runs away.* It is an act of negligence for a hack driver to 
 stand by the door of his hack reading a newspaper,^ or for a driver 
 in unloading to leave his horse loose in the street.* The fact 
 alone that a horse was permitted to escape, unexplained, has been 
 held in several States and in England to amount to proof of neg- 
 ligence.' But if proper care be shown there will be no liability.' 
 
 An allegation that injury occurred to plaintiff from defendant's 
 horse in consequence of its being negligently hitched by defend- 
 ant's servant is sufficient. The propensity of the horse to break 
 away, and the knowledge of the defendant, are not necessary aver- 
 ments, but matters of evidence to show negligence.' On the ques- 
 tion of his liability for negligence in permitting his horse to injure 
 
 ^Barton v. St. Louis & I. M. R. Go. 52 Mo. 253; McGahill v. Eipp, 2 E. D. 
 Smith, 413; Greenleaf v. Illinois Gent. B. Go. 29 Iowa, 14; Michael v. 
 Alestree, 2 Lev. 172; Overingto7i v. Dunn, 1 Miles, 39; Bill v. Smith. 39 
 Conn. 211; Norris v. Kohler, 41 N. Y. 42; Siemers v. Essen, 54 Cal. 418. 
 
 ^Phillips V. De Wald, 79 Ga. 733. 
 
 miidge v. Goodwin, 5 Car. & P. 192; Clark v. Ghamhers, L. R. 3 Q. B. Div. 
 
 327; Lanev. Atlantic Works, 111 Mass. 141; TJwmas Y.Winchester, 6 N. 
 
 Y. 397. 
 *Park V. O'Brien, 23 Conn. 339;Illidge v. Goodwin, 5 Car. & P. 190; Norris 
 
 V. KoMer, 41 N. Y. 42; Albert v. Bleecker St. B. Go. 2 Daly, 389; Matson 
 
 V. Maupin, 75 Ala. 312. 
 
 f-Oray v. Second Ave. B. Go. 65 N. Y. 561. 
 ^Western U. Tel. Go. v. Quinn, 56 III. 319. 
 "^ Scott V. London Dock Co. 34 L. J. N. S. Exch. 17, 220; Briggs v. Oliver, 35 
 
 L. J. N. S. Exch. 163; Moffatt v. Bateman, L. R. 3 C. P. 115; Curtis v. 
 
 Bochester & S. B. Co. 18 N. Y. 534; Fallon v. O'Brien, 12 R. I. 518. 
 
 8 Weldon v. Harlem B. Go. 5 Bosw. 576. 
 
 ^Bumsey v. Nelson, 58 Vt. 590, 2 New Eag. Rep. 63.
 
 Chap. XXYIL] horses exposed in public places. 613 
 
 another, it is no matter whether tlie defendant was or was not an 
 experienced horseman.' 
 
 Even where the law declares the fact that a horse is loose on 
 the street prima facie evidence of negligence in the owner, the 
 escape of a horse without fanlt from the owner, or nnreasonable 
 delay in his recapture, will not render the owner liable for the in- 
 jury of a child on the street by the horse.' 
 
 ^King v. McDermott, 2 Phila. 175; Tcnney v. Tuttle, 1 Allen, 185; Ilays 
 V. Millar, 77 Pa. 238; Doorman v. Jenkins, 2 Ad. & El. 256; Mertg v. 
 Detweiler, 8 Watts & S. 376. 
 
 ^Falion V. O'Brien, 13 R. I. 518.
 
 CHAPTEE XXVIII. 
 
 DOGS— LIABILITY OF OWNER. 
 
 Sec. 82. Duties Imposed upon Otv7iers of Dogs. 
 
 a. Freedom of the Streets. — Master not Liable for Tres^yass of 
 
 Dog on Close. 
 
 b. Oioner of Vicious Dog. — Ground of Liability. 
 
 c. Necessary Averments. — Proof of Scienter. 
 
 d. Harborer of Dog. — Unlawful Possession of Animal. 
 
 e. Wlien the Knowledge of Servant luill Charge Master. 
 Sec. 83. Protection of Property in Dogs. 
 
 Sec. 84. License or Tax upon Dogs. 
 
 Section 82.— Duties Imposed upon Owners of Dogs. 
 
 a- Freedom of the Streets.— Master not Liable for 
 Trespass of Dog on Close. 
 
 The practice of permitting dogs to run at large in our streets 
 and highways has so long and so universally prevailed, without 
 holding the owner liable for any injury which he had no reason 
 to believe they would commit, that it would create great surprise 
 if such action were treated as evidence of negligence. In Mason 
 v. Keeling, 12 Mod. 332, Lord Holt said that the law takes notice 
 that a dog is not of a fierce nature, but rather the contrary. Dogs 
 upon a farm are presumed not to be vicious or have bad and dan- 
 gerous habits.' 
 
 In State v. Donohue, 49 X. J. L. 548, 8 Cent. Rep. 621, it was 
 ruled that the fact that the owner of a dog permitted him to be at 
 large on the public street, lying unmuzzled on the sidewalk on a 
 dark night, when he sprang upon the plaintiff, who was passing, 
 and bit her, will not, in itself, render the owner liable without 
 proof of scienter. Under the authority of Durant v. Palmer, 29 
 IST. J. L. 544, it may be that if the plaintiff, while on her way in 
 
 ^Shaw V. Craft, 37 Fed. Rep. 817.
 
 Chap. XXYIII.] DUTIES IMPOSED UPON OWNERS OF DOGS. C15 
 
 the public street, had unavoidably fallen over the dog and injured 
 herself, the owner of the dog would be lial:)le in damages for such 
 injury.' But whether he is liable for damages inflicted by the 
 biting of the dog must depend upon proof of scienter.* 
 
 Horses, cattle and sheep feed upon herbage and destroy trees 
 and shrubs, and must be kept from another's land, but no case can 
 be found where the owner of a dog has been held in an action of 
 trespass where his dog went upon the premises of another without 
 his consent. Thus, in Scmders v. Teape^ 51 L. T. N. S. 263, the 
 owner of a dog was held not lial^le for the trespass of his dog in 
 leaping over the boundary wall upon another's field and falling 
 upon the plaintiff digging in a pit. The owner was likewise ex- 
 cused in Brown v. Giles, 1 Car. & P. 118, where his dog killed a 
 dog of the owner of the land on which he trespassed. But the 
 contrary was ruled in Chunot v. Larson, 43 "Wis. 536, where the 
 dog bit a cow on its owner's premises. 
 
 Beckwith v. Shordike, 4 Burr. 2092, was placed upon the ex- 
 press ground that the owner of the dog was himself a trespasser 
 with his dog in the plaintiff's close at the time the damage was 
 done, so that the jury had a right to find that the act of the dog 
 was the voluntary trespass of the master.' 
 
 b. Owner of Vicious Dog.— Ground of Liahility. 
 
 The owner of a dog known to be vicious has a right to keep 
 bim, if he exercises proper care and diligence to secure him so 
 that he will not injure anyone who does not unlawfully provoke 
 or intermeddle with him." Of course this cannot include an ani- 
 mal of so ferocious and untamed nature that his escape involves 
 a,bsolute peril to life, unless it be such as are kept for pari)oses of 
 public instruction in public parks or pUices of exhibition.' There 
 the end may justify the risk incurred, if the care be in proportion 
 to the risk. But one may certainly protect his premises by a dog 
 
 ' But see Jones v. Otoen, 24 L. T. N. S. 587. 
 
 ■Beck V. Dynon, 4 Camp. 199; Hogan v. Sharpe, 7 Car. & P. 755. 
 
 2See Read v. Edwards, 17 C. B. N. S. 245; Oree7i v. Doj/le. 21 111. App. 205. 
 
 So if he sent his dog to aunoy his neighbor's cattle. Mitten v. Faadrye, 
 
 Poph. 61. 
 *Wort?ien v. Love, 60 Vt. 285, 6 New Eng. Rep. 655. 
 *But see Brice v. Bauer, 108 N. Y. 428. 11 Cent. Rep. 327.
 
 616 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 sufficiently resolute for this purpose and repel intruders without 
 imperiling their person seriously.' 
 
 A man may keep a dog for the necessary defense of his house, 
 his garden or his fields, and may cautiously use him for that pur- 
 pose in the night time; but it is said that if he permit a mischiev- 
 ous dog to be at large on his premises, and a person is bitten by 
 him in the day time, the owner is liable in damages, though tlie 
 person injured be at the time trespassing on the grounds of the 
 owner, by hunting in his woods without license. It appears from 
 the authorities that a person is not permitted, for the protection, 
 in his absence, of property against a mere trespasser, to use means 
 endangering the life or safety of a human being, whatever he may 
 do where the entry upon his premises is to commit a felony or 
 breach of the peace; and where such means are used the nature 
 and value of the property sought to be protected must be such as 
 to justify the proceeding. For purposes of ordinary protection 
 against intrusion, full notice of the danger to be encountered must 
 be given, and one that can be understood, for a printed notice will 
 not be sufficient for one not able to read;^ and the principles of 
 humanity must not be violated, or the owner will be subjected to 
 damages for any injury which ensues.^ 
 
 The fact that the owner of a vicious dog left at large may have 
 been able to control the animal by calling him off when he ran 
 out at persons will not relieve or excuse him from a charge of 
 negligence where other facts are proved requiring him to restrain 
 the dog.* 
 
 It has indeed been said that the gist of the action for injury 
 from an animal known to be inclined to be vicious is the wrong 
 in keeping the animal after such knowledge.^ It is said that 
 where an animal is accustomed to injure persons and the owner 
 has notice or knowledge of that fact, he is liable for any injury 
 
 ^Muller V. McKesson, 73 N. Y. 195; Woolf v. Chalker, 31 Conn. 121; Brock 
 V. Copeland, 1 Esp. 203; Amick v. O'Hara, 6 Blackf. 258; Davis v. Camp- 
 bell, 23 Vt. 236; Tiffts v. Tiffts, 4 Denio, 175; Wood v. La Eue, 9 Mich. 
 158. 
 
 ^Sarch v. Blackburn, 4 Car. & P. 296. See Montgomery v. Koester, 35 La. 
 Ann. 1091. 
 
 ^Loomis V. Terry, 17 Wend. 496. 
 
 *Dockerty v. Flatson (Ind. Sept. 18, 1890) 25 N. E. Rep. 144. 
 
 ^Partlow V. Haggarty, 35 Ind. 178.
 
 Chap. XXYIII.] DUTIES imposed upon owners of dogs. 017 
 
 which such animal may do to another person rightfully in the lo- 
 cality,' and that a person who keeps an animal, after a knowledge 
 of its vicious disposition, is liable for such injury as it may do, 
 without reference to any specific negligence in its custody/ But 
 these statements of the law are not strictly accurate, unless in case 
 of a ferocious and dangerous animal kept for no lawful purpose; 
 for a negligent failure to keep the animal safely, so tliat he cannot 
 injure anyone lawfully at the place of injury, is the true founda- 
 tion of the liability. For if, without fault of the owner, the ani- 
 mal be released by another, the owner is not liable.' In a suit to 
 recover for the injuries received from a vicious dog, where defend- 
 ant admitted that he knew of the dog's propensities, and attempted 
 to show that he kept him securely fastened, evidence that the dog 
 had been so insecurely chained that, only a few days before the in- 
 jury of the plaintiff, the dog, when unprovoked, broke away from 
 its fastenings and injured the witness' young daughter when pass- 
 ing on the street, and that this was known to the defendant, was 
 properly admissible as tending to impeach the credibility of the 
 defendant as a witness who had testified to his keeping the dog 
 securely fastened.* 
 
 The very purpose for which the owner keeps the dog may 
 charge him with knowledge of his character, and he will be 
 chargeable with negligently keeping him, although it is not in 
 proof that the dog had actually bitten another person before he bit 
 the plaintiff.^ In the case cited, the court said that the condition 
 of the defendant is that of one who has in his possession and un- 
 
 ^ Marble v. Ross, 124 Mass. 44; Keenan v. Chitta Percha & R. Mfg. Co. 46 
 Hun, 544; Partlow v. Haggarty, 35 Ind. 178; Arnold v. Norton, 25 Conn. 
 92; FaircUld v. Bentley, ao Barb. 147; Logue v. Sink, 4 E. D. Smith, 63; 
 Buckley v. Leonard, 4 Denio, 500; KeighUinger v. Egan, 65 111. 235; Lave- 
 rone v. Mangianti, 41 Cal. 138, 10 Am. Rep. 269; SJierfeyv. Bartley, 4 
 Sneed, 58; M'CaskiU v. EUiot, 5 Strobh. L. 19Q;Meibus v. Bodge, 38 Wis. 
 300, 20 Am. Eep. 6; Smith v. Pelah, 2 Strange, 1264; Stiles v. Cardif 
 Steam JSlav. Co. 33 L. J. N. S. Q. B. 311; Oa/cesy. Spaulding, 40 Vl. 
 347. 
 
 '^Popplewell V. Pierce, 10 Cash. 509; Koney -v.Ward, 2 Daly, 295; Stumps v. 
 Kelley, 22 111. 140; Kittredge v. Elliott, 16 N. H. 77; Kelly v. Tilton, 2 
 Abb. App. Dec. 495, 3 Keyes, 263; Earhart v. Youngblood, 27 Pa. 
 331. 
 
 ^Meredith v. Reed, 26 Ind. 334; Fleming v.' On; 2 Macq. H. L. Cas. 14. See 
 Brooks V. Taylor, 65 Mich. 208, 8 West. Rep. 188. 
 
 *Wort7ien v. Love, 60 Vt. 285, 6 New Eng. Rep. 655. 
 
 ^Brice v. Bauer, 108 X. Y. 428, 11 Cent. Rep. 327.
 
 '61S IMPOSED DUTIES, PERSONAL. [Part III. 
 
 der his control an animal (a watch dog), dangerous, unless reason- 
 able precautions are taken to prevent injury to third persons. In 
 such case, it is obvious the injurj must have occurred by his neg- 
 lect, and for the consequences he must be held responsible.' The 
 animal that escaped from his chain in Brice v. Bauer', above 
 cited, and which attacked the plaintiff on his own premises, while 
 he was defending his pigs from the dog's attack, was of unusual 
 size, large, solid and heavy, having a short, thick neck, being a 
 cross between a mastiff and a blood hound or jSTewfoundland, and 
 was, in fact, very ferocious. The owner kept half a dozen such 
 dogs, always in chains, he said, day and night. "At night tied 
 •out of the buildings, in the day time in the house — never un- 
 chained." This was an extreme case. The dog was of a savage 
 breed and shown to be in fact ferocious and of a size and strength 
 unusual, and he escaped from control and trespassed upon the 
 plaintiff's premises and attacked him furiously, attempting to reach 
 his throat, and in fact pulling him to the ground, and as the plain- 
 tiff protected his throat by his arms, bit him " seven times on one 
 arm and five on the other," and kept his hold in spite of the plain- 
 tiff's struggles, and every effort on the part of neighbors, who, 
 hearing the plaintiff's cries, had come to his assistance, until one 
 having a gun shot the dog dead as he was making for the plain- 
 tiff's throat. He had before bitten the defendant's coachman and 
 his wife. And although the defendant kept half a dozen such 
 -dogs, no sug-o-estion is made of neo-lio-ence in this act, but the en- 
 tire liability is placed before the jury and on appeal as a question 
 of whether " reasonal)le precautions are taken to prevent injury to 
 third persons," and if this was not done, " in such case it is obvi- 
 ous the injury must have occurred by his neglect, and for the con- 
 sequences he should be held responsible." 
 
 When knowledge of the vicious disposition of the animal, and 
 that he was kept after such knowledge, is shown, negligence may 
 be implied from the failure to keep him safely, in the absence of 
 any proof of any unlawful intervention of a third party.^ Per- 
 haps it is proper to say that the injury from such an animal, thus 
 
 'Citing Muller v. McKesson, 73 N. Y. 195. 
 * Williams v. Moray, 74 Ind. 25.
 
 dliap. XXVIII.] DUTIES IMPOSED UPOX OWNERS OF DuGS. (U9 
 
 kept, is prima facie evidence of negligence.' Whore tlie owner 
 was held liable for an injury to one who fell through a defective 
 step, into a place where a savage dog was chained, the fault was 
 clearly the keeping the dog in a place thus liable to be invaded 
 without fault in the intruder.* Doubtless the duty is to keep the 
 animal so that no injury shall occur without the active interfer- 
 ence of some third party or the contributory negligence of the 
 person injured, and a failure to do this is negligence, for care must 
 be proportioned to the danger involved.' If, without contributory 
 fault on the part of the master or his dog, the latter is attacked 
 and injured by another savage dog, the master of the latter may 
 be liable.^ 
 
 c. JYecesscivy Avermeiits.— Proof of Scienter. 
 
 Knowledge of the owner that the animal is vicious is sufficient 
 without proof that it had ever bitten anyone.* But proof that a 
 dog would bite animals will not authorize proof that it would 
 likely bite a man.^ A single act will charge the owner with knowl- 
 
 ^Rirler v. White. 65 N. Y. 54; Brooks v. Taylor, 65 Mich. 208, 8 West 
 Rep. 188; May v. Burdett, 9 Q. B. 101; Lynclie v. McNally, 7 Daly, 
 lao, 73 N. Y. 347; Wheeler v. Brant, 33 Barb. 334; KUtredge v. Elliott, 
 16 N. H. 77; Brown v. Carpenter, 36 Vt. 638; Muller v. M-Kesson, 73 N. 
 Y. 195; Popplewell v. Pierce, 10 Cush. 509; Sttimps v. Kelley, 33 111. 140; 
 Jackson v. Sinithson, 15 Mees. & W. 563; Smith v. Pelah, 3 Strange. 1364; 
 Eeed v. Edwards, 17 C. B. N. S. 345; Hagan v. Sharpe, 7 Car. & P. 755; 
 Marsh v. Jones, 31 Vt. 378. 
 
 ^Laverone v. Mangianti, 41 Cal. 138. 
 
 ^Earhart v. Youngblood, 27 Fa.. 331; Pickens v. Diecker, 21 Ohio St. 313; 
 Woolfv. C'hatker, 31 Conn. 131; Lootnis v. Terry, 17 Wend. 496: Tl'idwn 
 V. Roberts, 6 E.xch. 695-699. 30 L. J. N. S. Exch. 399; Li/nrh v. McNally, 
 7 Daly, 130, 73 N. Y. 347; Sareh v. Blackburn, 4 Car. & P. 397; Sherfey v. 
 Bartley, 4 Sneed, 58; Kelly v. Tilton, 3 Keyes, 363; Wheeler v. Brant. 38 
 Barb. '624^; Black man v. Simmons, 3 Car. & P. 138; Stumps y. Kelley, 33111. 
 140; Jackson v. Smithson, 15 Mees. & W. 563. 
 
 ■*Wiley V. Slater, 33 Barb. 506; Wheeler v. Brant, 33 Barb. 324. 
 
 ^Bider v. White, 65 N. Y. 54, 33 Am. Rep. 600; Oodeau v. Blood, 53 Yt. 251, 
 36 Am. Rep. 751; Hartley v. Ilarriman, 1 Barn. & Aid. 630: Cropper v. 
 Matthews, 2 Sid. 137; Judge v. Cox, 1 Stark. 337; Blackman v. Simmons, 
 3 Car. & P. 13S; Jenkins v. Turner, 1 Ld. Raym. 109; Jackson v. Smith- 
 son, 15 Mees. & W. 563; Hudson v. Roberts, 6 Exch. 697; May v. Burdett, 
 9Q. B. 101; Reynolds v. Hus^ey, 64 N. H. 64. 3 New Eng. Rep. 733; 
 Williams v. Moray, 74 Ind. 25; Congress & E. Spring Co. v. Edg<ir,dd U. 
 S. 465, 35 L. ed. 487; Oaks v. Spaulding, 40 Vt. 347. 
 
 *Keighilinger v. Egan, 65111. 235; Twigg v. Ryland, 63 Md. 330.
 
 620 IMPOSED DUTIES, PERSONAL. [Part III, 
 
 edge of such a propensity which subsequent good conduct cannot 
 obliterate.' 
 
 Where, in a suit against the owner of a dog which had bitten 
 the plaintiff, the fact that she had been bitten had been continu- 
 ously denied and numerous witnesses called by the defendant who 
 testified that they were present and saw no bite, the testimony of 
 another witness that she was attacked and bitten by the same dog 
 before the plaintiff was bitten, or subsequently, was admissible.*- 
 
 That a horse kicks without special provocation creates a pre- 
 sumption that that is his habit.^ That a dog was usually chained 
 is evidence that it is considered dangerous if permitted to go at 
 large.'' And the jury may form their judgment from seeing the dog.^ 
 
 The keeping of an animpl accustomed to attack and injure man- 
 kind with knowledge of such fact is a sufficient allegation of neg- 
 ligence without any direct averment of such want of care." It is 
 not necessary to allege tlie place of keeping; the fact of keeping 
 is sufficient. Nor is it customary or usual, in any of the forms 
 used in text books or in cases of injuries by mischievous or 
 vicious animals, to allege negligence on the part of defend- 
 ant.' It has been, on the contrary, almost uniformly held that it 
 is only necessary to allege the ferocity of the animal and the 
 knowledge of the owner. The negligence consists in not securely 
 keeping such an animal after notice, and whoever keeps an animal 
 
 ^ Arnold Y. Norton, 25 Conn. 92; Judge v. Cox, 1 Stark. 227; Buckley v. Leon- 
 ard, 4 Denio, 500; Charhcood v. Greig, 3 Car. & K. 46; Mann v. Weiand, 
 81* Pa. 255 ; Simson v. London General Omnibus Co. L. R. 8 C. P. 390. 
 
 ^Fitzgerald v. Dobson, 78 Me. 559, 3 New Eng. Rep. 394; Kennonv. Gilmer, 
 5 Mont. 257. See Com. v. Merriam, 14 Pick. 518; Com. v. Laliey, 14 
 Gray, 91; GodeauY. Blood, 52 Vt. 251; Huntsman v. Nichols, 116 Mass. 
 521; Com. V. Pierce, 11 Gray, 447; State v. Witham, 72 Me. 535; Eeight- 
 linger v. Egan, 65 111. 235; Maggi v. Cutis, 123 Mass. 535; Buddey v. 
 Leonard, 4 Denio, 500; Applebee v. Percy, L. R. 9 C. P. 647. 
 
 hSimson v. London General Omnibus Go. L. R. 8 C. P. 390. And the gen- 
 eral reputation of the animal is admissible. Murray v. Young, 12 Bush, 337. 
 
 *Brice v. Bauer, 108 N. Y. 428, 11 Cent. Rep. 327. 
 
 ^Line v. Taylor, 3 Post. & F. 731. 
 
 ^Brooks V. Taylor, 65 Mich. 208. 8 West. Rep. 188; Lynch v. McNally, 7 
 Daly, 130, 73 N. Y. 347; Chit. PI. (16th Am. ed.) vol. 1, p. 93, vol. 2, pp. 
 561, 563: Popplewell v. Pierce. 10 Cash. 509; Brown v. Carpenter, 26 Vt. 
 638; iStumps v. Kelley, 22 111. 140; Woolfv. Chalker, 31 Conn. 121; M'Cas- 
 kill V. Elliott, 5 Strobh. L. 196; May v. Btirdett, 9 Q. B. 101; Smith v. Pelah, 
 2 Strange, 1264; Jackson v. Smithson, 15 Mees. & W. 563; Hudson v. Rob- 
 erts. 6 Exch. 695-699. 20 L. J. N. S. Exch. 299. Contra, Partlow v. Hag- 
 garty. 35 Ind. 178; Williams v. Moray, 74 Ind. 25. 
 
 ^2 Chit. PI. (16th Am. ed.)562, 563; Popplewell v. Pierce, 10 Cush. 509.
 
 Chap. XXVIII.] DUTIES IMPOSED UPON OWNERS OF DOGS. 621 
 
 accustomed to attack and injure mankind, with knowledue tliat it 
 is so accustomed, is prima facie guilty of want of care and liable 
 in an action on the case at the suit of any person attacked and in- 
 jured by the animal, without any averment of negligence or de- 
 fault in securing and taking care of it. It may be that the injury 
 was solely occasioned by the willfulness of the plaintiff after 
 Avarning; that may be a ground of defense by plea in confession 
 or avoidance.* If it were proven as a matter of defense that the 
 plaintiff willfully provoked the animal or was grossly negligent in 
 goino: near him with knowledo;e of his vicious habit of luxikin<2:, it 
 would of course preclude recovery; but as the gist of the action, 
 according to all the authorities, is the insecure keeping of the dan- 
 gerous animal with knowledge, and the injury b}' such an animal 
 is prima facie proof of negligence and actionable without refer- 
 ence to the conduct of the plaintiff, want of negligence on the part 
 of the plaintiff is not necessary to be averred or proven.'' 
 
 Unless actual proof is made of ferocious disposition, actual 
 knowledge must be shown in the owner of a dog inclined to bite, 
 and it is not sufficient that he might have known if he had used 
 <3iligeuce to inform himself.^ 
 
 d. Harhover of Dog.— Unlawful Possession of An- 
 imal. 
 
 The duty to protect others against injury from vicious animals 
 IS imposed upon the keeper irrespective of ownership.^ If a per- 
 ijon harbors a dog accustomed to bite, or allows it to frequent his 
 premises, he is liable under the same conditions as if he were the 
 owner. ^ Otherwise where he tries to keep him off his premises, 
 but is not successful." A corjjoration will be liable if it permit 
 a serv^ant to keep such an animal knowingly.'' 
 
 ^Popplewell V. Pierce, 10 Cush. 509. and cases cited; Woolfv. Chalker, 31 
 Conn. 130; Brooks v. Taylor, 65 Mich. 208, 8 West. Rep.' 188. 
 
 •^ Brooke V. Taylor. 65 Mich. 208. 8 West. Rep. 188. 
 
 ^Laherty v. Hogan, 13 Daly, 583. 
 
 *Hine v. Wooding, 87 Conn. 123. 
 
 ^Frnmmellv. Little, 16 Ind. 251; Marsh v. Jones, 21 Vt. 378; ^fcKoncv. Wood, 
 5 Car. & P. 1; Wilkinson v. Parrott, 32 Cal. 102. 
 
 ^Smith V. Great Eastern R. Co. L. R. 2 C. P. 4, 30 L. J. N. S. C. P. 22. 1."") 
 W. R. 31. 15 L. T. N. S. 240. 
 
 ''Barrett V. Maiden <& M. R. Co. 3 Allen, 101; Midler v. McKemm. 73 N. Y. lO'..
 
 ^>22 IMPOSED DUTIES, PERSONAL. [Part Ill- 
 
 One who keeps a vicious dog, with knowledge of its vicious dis- 
 position, is liable to a person injured bj it, although he does not 
 own it.' Where plaintiff's father wrongfully took a dog belong- 
 ing to defendant, and kept him at his home in such a way that it. 
 can be said that the dog really lived there, and plaintiff's son was 
 bitten by the dog, the father was held liable and defendant was 
 not.^ N'or would one be liable for the act of one over whom he 
 had no legal control, or for whose action he was not responsible, 
 as that of a boarder on his premises, or a tenant, although in some 
 sense an employe.' 
 
 Generally it has been- held that while animals are in the pos- 
 session of a bailee, or one unlawfully holding them, the owner will 
 not be liable for injury inflicted by them, but the injured person 
 must look to the hirer, the trespasser or the agister.* There are 
 authorities, however, which assert a liability of both owner and 
 agister of cattle at common law.^ 
 
 Dogs upon a farm are regarded as domestic animals, and are 
 presumed not to be vicious, or to have by nature dangerous in-, 
 stincts or to have acquired bad or harmful habits, and the owner 
 or harborer is not liable for the consequences of their vicious acts 
 unless he had knowledge that would require him to anticipate 
 such action. He is not an absolute insurer that they will not be- 
 come vicious and acquire habits of pursuing or chasing passers on 
 adjacent highways. But when they are known to have acquired 
 such habits, they should be properly restrained. The harborer of 
 one dog, and the owner of another, both known to him to be in 
 the habit of barking at and cliasing persons or horses on the road 
 adjoining his preniises, but without knowledge that injury had 
 been done thereby, and no proof being made of his knowledge 
 that such act of the dogs in so doing would be likely to produce 
 injury, was held only to the exercise of reasonable and ordinary 
 care to prevent injury being done by such dogs to passengers- 
 along the road, and this ordinary care was defined to be such as a 
 
 ^Keenan v. Gutta Percha Mfg. Co. 46 Hun, 544. 
 
 ^Burnham v. Strother, 66 Mich. 519. 
 
 ^AucJimuty v. Ham, 1 Denio, 495; Cammings v. Riley, 53 N. H. 368. 
 
 *W(des V. tord, 8 N. J. L. 267; Lyons v. Merrick, 105 Mass. 71; Cook v. 
 
 Morea, 33 Ind. 497; Rossellv. Cottom, 31 Pa. 525; Smith v. Race, 76111. 490; 
 
 Tewksbury v. Bucklin, 7 N. H. 518; Barnum v. Van Dusen, 16 Conn. 200. 
 *8heriden v. Bean, 8 Met. 284.
 
 Chap. XXVIIL] DUTIES imposed upon owners of dogs. C23 
 
 reasonably prudent person would or should exercise under like 
 circuinstances. In Shaw v. Craft, 37 Fed. Rep. 317, the jury 
 were also told that if the owner of the one, being also the harborer 
 of the other, had knowledge that the dogs had been in the habit 
 of viciously chasing or pursuing passers-by in the public road 
 adjacent to his premises, and injury had resulted therefrom, or 
 the dogs had been guilty of such acts with reference to persons 
 or teams passing along such highway, as that injury might have 
 thereby resulted, then, with such knowledge, it was his duty to 
 take such necessary measures as would secure the public against 
 danger from such future conduct and acts of the dogs, and, fail- 
 ing to do so, he would be liable for injuries committed or pro- 
 duced after such knowledge. The jury held tlie defendant liable, 
 perhaps taking what seems the reasonable view, that knowledge 
 of the habit involved knowledge of its dangerous consequences. 
 The jury were also told that the owner of the dog would be lia- 
 ble with the harborer on whose premises his dog was at the time,, 
 if he had the same knowledge, and he would be required to exer- 
 cise the same care and diligence as the harborer. This, of course, 
 was predicated of the presence of the dog on the premises, with 
 the consent, actual or constructive, of its owner, or of his negli- 
 gence in suffering a dog of such habits to be uncontrolled. 
 
 But the liability depends upon a legal title or possession, with 
 power of control, or responsibility for the conduct, of the person 
 placed in possession. Where defendants, as executors of a will, 
 made an agreement with a tenant by which the latteV was to work 
 a farm belonging to the estate, keeping the fences in repair and 
 caring for the stock, each party to have one half the produce and 
 one half the increase of stock, and the tenant, without the knowl- 
 edge of the executors, traded off a ram left with the sheep for 
 another which escaped from the farm and entered upon plaintilf's 
 farm adjoining and injured him, the executors, being sued, wei-e 
 held not liable as owners.' But one partner has been charged 
 under a statute with liability as keeper, for injury done by a dog 
 kept and owned by the firm.* And the custody of one joint 
 owner will render both owners liable for an injury b}' an animal.' 
 
 'ifu/\v7i V. Hand, 130 N. Y. 315. See Walker v. Fim, 24 Pick. 191. 
 '^Qrant v. Richer, 74 Me. 487. 
 ^Smith V. Jaques, 6 Conn. o30.
 
 ^2i IMPOSED DUTIES, PERSONAL. [Part III. 
 
 In many of the States the liability of the owner or harborer of 
 dogs is fixed by statute, and where this is so the liability must be 
 determined under them. Thus, under the Michigan and Massa- 
 chusetts Statutes, which provide that it shall not be necessary to 
 prove that the owner knew that a dog was accustomed to do mis- 
 chief in order to make him liable, it is not necessary to aver such 
 knowledge in a declaration for damages caused by such dog.' 
 
 The liability of the owner or keeper of a dog, under Mass. Pub. 
 Stat., chap. 102, § 93, arises, whether such injuries were caused by 
 biting or by jumping upon a person and throwing him to the 
 ground; and it is immaterial whether the dog was acting in -plaj 
 or with vicious intent;'' and a recovery may be had by a parent 
 for injury to a child.' 
 
 One charged under a statute as " possessed " of a sheep-killing 
 dog cannot be convicted where he only harbored it." A provis- 
 ion rendering a person in possession of a dog or who shall suffer a 
 dog to remain about his house for twenty days, etc., liable as 
 owner for his mischievous acts, does not make an employer liable 
 for mischief done by the dog of his hired laborer, where the dog 
 was in the habit of following his master daily to his work on the 
 farm of the employer and returning each night and staying with 
 his master at his own house, which was distinct from that of the 
 employer.' 
 
 e. JVTien the Knowledge of Servant will Charge 
 
 Master. 
 
 A servant's knowledge of the vicious character of a dog accus- 
 tomed to follow him about on the master's business, but not put 
 in his charge by the master, is not imputable to the latter.^ Where 
 the knowledge of such propensity in the dog is brought home to 
 
 ^Neioton v. Gordon, 72 Mich. 642; Roswell v. Leslie, 133 Mass. 589. 
 
 ^Hathaway v. Tiiikham, 148 Mass. 85. 
 
 »M'Ca.rihy v. Guild, 12 Met. 291. 
 
 * Williamson v. Carroll, 16 N. J. L. 217; Strang v. Newlin, 38 How. Pr. 364; 
 
 Grant v. Bicker, 74 Me. 481. 
 ^Auchmuty v. Ham, 1 Denio, 495. 
 ^Iwigg V. Byland, 62 Md. 880; Stiles v. Cardiff St am Nav. Co. 33 L. J. N. 
 
 S. Q. B. 310.
 
 Chap. XXYIII.] PROTECTION OFPROPERTY IN DOGS. 625 
 
 a servant who has been placed in charge of the dog by tlie master 
 the latter will be chargeable with notice.' 
 
 In Baldwin v. Casella, L. R. 7 Exch. 325, it is said that all 
 dogs may be mischievons and tliercfore a man who keeps a dog is 
 bound either to have it under his own observation or inspection, 
 or, if not, to appoint someone under whose observation and in- 
 spection it may be, and that person's knowledge is the knowledge 
 of the owner. In Brice v. Bauer, lOS N". Y. 42S, 11 Cent. Rep. 
 327, it is said that the knowledge of one of the servants, to whose 
 care the dog is intrusted and who was himself bitten by the dog, 
 is the knowledge of the master, although he was not in fact in- 
 formed of the occurrence. 
 
 If a general agent in charge of the property have notice of the 
 savage disposition of a dog kept on the premises, the principal 
 will be chargeable with such information.' 
 
 Section ^Z.— Protection of Property in Dogs. 
 
 No kind of property has been more subject to legislation, re- 
 strictive in its character, and often destructive in its mandate, 
 than the property in dogs. Beasts thoroughly tamed and serving 
 man for purposes of husbandry or transportation, or consumed for 
 food, are entitled to the same kind of legal protection as other 
 classes of property. But dogs are valuable, for the purposes for 
 which they are kept, somewhat in the relative proportion that 
 their destructive instincts and wild nature can be aroused and yet 
 restrained within the bounds of reasonable safety to the pul)lic. 
 It is this dangerous and somewhat cultivated tendency to retro- 
 gression that requires legislation to empower the destruction of 
 such animals or their restraint, when it would not be justilied in 
 the case of the thoroughly domesticated classes, whose existence, 
 safety and comparative liberty are necessary to man.' 
 
 In 1715 a provision for the killing of "unruly and ravenous 
 dogs" was included in a Statute "for encouraging the killing of 
 
 ^Baldwin v. Casella, L. R. 7 Exch. 41; Applebee v. Percy, L. R. 9 C. P. 
 
 647, 22 Week. Hep. 704, 43 L. J. N. S. C. P. 365. 30 L. T. N. S. 785. 
 •i Corliss V. Smith, 53 Vt. 532. 
 ^Putnam v. Payne, 13 Johns. 312; Brown v. Carpenter, 26 Vt. 638; Woolfv. 
 
 Chalker, 31 Conn. 121. 
 
 40
 
 626 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 wolves."' A Statute in 1743 recited that much damage had been 
 done by nnrnl}^ and mischievous dogs in worrying and killing 
 sheep and lambs on the Island of Nantucket, and declared that 
 thereafter it should be lawful for any person to kill any dog found 
 there. From time to time statutes have been passed in all the 
 States restricting the liberty of keeping dogs, and to protect sheep 
 and the public.'' 
 
 A dog listed for taxation cannot be lawfully killed except while 
 engaged in committing damages to property of others than its- 
 owner, where there is no evidence that the dog was known to be 
 one that would kill or maim sheep.^ Cause to believe that a dog 
 was apt to kill hens is not a justihcation, under the Massachusetts- 
 Statute, unless there was cause to believe that the killing of the 
 dog was necessary." 
 
 A statute authorizing the killing of a dog found worrying sheep 
 does not authorize such killing unless the dog was actually worry- 
 ing the sheep, nor after he has passed into another field;* and 
 it is not sufficient that the party believed him to be worrying 
 them.* In order to authorize the killing, it is not necessary to 
 show that it was killed in the very act of worrying sheep, but it 
 is sufficient to show that it was found in the act and immediately 
 followed up and killed.' 
 
 Russell V. Tomlinson^ 2 Conn. 206, was an action of trespass, 
 averring that defendants entered upon plaintiff's land with their 
 dogs and worried and killed plaintiff's sheep, in which case the 
 court said: " Owners are responsible for the mischief done by 
 their dogs, but no man can be liable for mischief done by the dog 
 of another, unless he has some agency in causing the dog to do 
 
 iProv. Stat. 2 Geo. I. chap. 3, Mass. Prov. Laws (ed. 1726) 243. 
 
 ^Toicer v. Tmver, 18 Pick. 262; Morey v. Brown, 42 N. H. 373; Garter v. 
 Dow, 16 Wise, 298; Smith v. C-iusey, 22 Ala. 56^; Jones v. Sherwood, 37 
 Conn. 466; Trompen v. Verhage, 54 jMicli. 304; Fish v. Shut, 21 Barb. 
 333; State v. Donahue, 49 N. J. L. 548, 8 Cent. Rep. 621; Kerr v. O'Con- 
 nor, 63 Pa. 341; Remele v. Donahue, 54 Vt. 555; Ories v. Beck, 24 Ohio 
 St. 329; Mc Adams v. Sutton, 24 Ohio St. 333. 
 
 Winwiddie v. State, 103 Ind. 101, 1 West. Rep. 138. 
 
 *Livermore v. BcitcMder, 141 Mass. 179, 1 New Eng. Rep. 749. See Janson 
 V. Brown, 1 Camp. 41. 
 
 ^ Wells V. Head, 4 Car. & P. 568. 
 
 <^Johnsonv. McGonnell, 80 Cal. 545; Brent v. Kimball, 60 111. 211. 
 
 "^Johnson v. McGonnell, 80 Cal. 545; Spray v. Ammerman, 66 111. 309.
 
 Chap. XXYIIL] PROTECTION OF PROPERTY IN DOGS. 627 
 
 the deed. When the dogs of several persons do mischief together, 
 each owner is only liable for the mischief done by his own dog» 
 and it would be repugnant to the plainest principles of justice to 
 say that the dogs of different persons, by joining in doing mis- 
 chief, could make the owners jointly liable. This would be giv- 
 ing them a power of agency which no animal was ever supposed 
 to possess." ' 
 
 Where animals belonging to several owners do damage together^ 
 each owner is not separately liable for the acts of all.'' A joint ac- 
 tion does not lie against the separate owners,' but in many of 
 the States that liability is imposed by statute.* 
 
 The Statute making the owner of a dog which shall kill or 
 wound sheep liable, without notice that he was mischievous, has 
 no application where the sheep were only chased and worried. In 
 that case there must be proof of scienter to render the defendant 
 liable.^ Proof is admissible, where one dog is identified as par- 
 ticipating in killing sheep, that another dog at another time was 
 seen in his company.' A dog may be identified by his bark,'' 
 
 It has been held that if it be once shown that a dog is so fero- 
 cious that he will, of his own disposition, bite mankind in the 
 street, and is at large, he is a nuisance and may be killed by any- 
 one.' Dogs should not be allowed to annoy citizens in the high- 
 way, and much less endanger the life or person of a human being." 
 But there must be more than simple viciousness, and the person 
 justifying the killing must do so upon his then knowledge of the 
 ferocity of the dog and not upon after-acquired information."* 
 
 'See also Auchmuty v. Ham, 1 Denio, 495. 
 
 ^Van Steenburgh v. Tobias, 17 Wend. 562; Auchmuty v. Ham, 1 Denio, 405; 
 Partenheimer V . Van Order, 20 Barli. 479. 
 
 Wan Steenburgh v. Tobias, 17 Wend. 562. 
 
 *Rerr v. O'Connor, 63 Pa. 341. 
 
 ^Auchmuty v. Ham, 1 Denio, 495. See Millen v. Fandrye, Poph. 161. 
 
 ^Carroll v. Weiler, 4 Tliomp.& C. 131. 
 
 ''Street v. Laumier, 34 Mo. 469; McCahill v. Eipp, 2 E. D. Smith, 413. 
 
 ^Maxwell V. Palmer ton, 21 Wend. 407; Putnam v. Payne, 13 Johns. 312; 
 Brown v. Carpenter, 26 Vt. 638; Uinckley v. EmerKon, 4 Cow. 352; Sher- 
 feyv. Bartley, 4: Sneec], 58; Loomtsv. ferry, 17 Wend. 500; McKone v. 
 Wood, 5 Car. & P. I; Blair v. Forehand, 100 Mass. 141; Wadhurxtv. Dam- 
 me, Cro. Jac. 45; Barrington v. Turner, 3 Lev. 28; King v. Kline, 6 Pa. 
 318: Exodus, xxi. 28, 29. 
 
 *Dunlap V. Snyder, 17 Barb. 561. 
 
 ^'^Brent v. Kimbell. 60 111. 211.
 
 628 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 Nor even if a domestic animal be a trespasser can it for that rea- 
 son be killed, nor because a do<^ has before that bitten a person 
 can he be killed when not doing mischief.' Nor to protect an 
 animal of relatively small value may another more valuable ani- 
 mal be killed.'' It will depend upon the question of reasonable 
 necessity.' A stranger may kill the pursuing animal if reasona- 
 bly necessary and the relative value justify it;^ or if about to 
 pursue.^ So in defending his own muzzled dog one may kill an 
 attacking dog;' and when attacked one may kill a dog in reason- 
 able self-defense.' Shooting a dog as he retreats after a harmless 
 attack cannot be justified.^ But a dog may be killed when found 
 doing mischief." 
 
 Section 84. — License or Tax upon Dogs. 
 
 The law, for protection of the public, in the various States, and 
 especially in cities and towns, imposes a license tax, and requires 
 the attachment of a tag to a dog running at large, and the Legis- 
 lature may, under the police power, authorize any person to kill 
 any dog not licensed and collared, wherever found." But ordi- 
 narily a mayor of a city has no authority to direct the city mar- 
 shal to kill licensed dogs, found running at large unmuzzled, in 
 the absence of an ordinance authorizing such action." 
 
 Under the License Laws, requiring a dog tax, usually no previ- 
 ous assessment of such tax is necessary. The law is violated 
 where the tax is not paid.'^ 
 
 ^M'G'iskillv. Elliott, 5 Strobh. L. 196; Turnery. Cory, 5 Ind. 216; Dean v. 
 Clapton, 7 Taunt. 489; Wright v. Ramscot, 1 Saund. 83; JoJmson v. Pat- 
 terson. 14 Conn. 1; Clark v. Keliher, 107 Mass. 406; Ford v. Taggart,4:Tex. 
 492; Dodson v. Mock, 4 Dev. & B. L. 146; Perry v. Phipps, 10 Ired. L. 259. 
 
 ^Morse v. Nixon, 6 Jones, L. 293. 
 
 ^Lipe V. Blackwelder, 25 111. App. 119; Williams v. Dixon, Go N. C. 416; An- 
 derson V. Smith, 7 111. App. 354. 
 
 "^ Leonard v. Wilkins, 9 Johns. 233. 
 
 ^ Spray v. Ammerman, 66 111. 309. 
 
 ^Boecher v. Lutz, 13 Daly, 28. See Dunning v. Bird, 24 111. App. 270. 
 
 ''Reynolds v. Phillips, 13 111. App. 557; Cornelius v. Grant, 7 Sc. Sess. Cas. 4. 
 
 ^Morris v, Nugent, 7 Car. &*P. 568; Hanway v. Boultbee, 4 Car. &P. 350. 
 
 ^Wadkurstv. Damme, Cro. Jac. 45; Putnam v. Payne, 13 Johns. 312; Car- 
 penter v. Lippitt, 77 Mo. 243; Protheroe v. Matliews, 5 Car. & P. 581. 
 
 ^'^Blair v. Forehand, 100 Mass. 136; State v. Topeka, 36 Kau. 76. 
 
 ^^Stebbins v. Mayer, 38 Kan. 573. 
 
 " United States v. Hoskins, 5 Mackey, 478, 8 Cent. Rep. 705.
 
 CHAPTER XXIX. 
 
 ANDIALS FER^ NATUR.f: OR \»iril CO:^TAGIOUS DISEASE; 
 
 CRUELTY. 
 
 Sec. 85. Keepers of Animals Ferce JVaturm of Vicious Instincts 
 in Places of Public Resort Liable for Injury to Others. 
 
 Sec. 86. Contributory Negligence in Case of Injury from. Animals. 
 
 Sec. 87. Duty of Owner of Animals Suffering from Cotitagious 
 Disease. — Warranty. 
 
 Sec. 88. Cruelty to A7iimals. 
 
 Section 85. — Keepers of Animals Ferm ^citurce of 
 Vicious Instincts in Places of Fuhlic Presort 
 Liahle for Injury to Others. 
 
 Owners of wild beasts or animals tliat are in tlieir nature vicious 
 are liable under all, or most all, circumstances for injuries done by 
 them; and in actions for injuries done by such beasts it is not 
 necessary to allege that the owner knew them to be mischievous, 
 for he is presumed to have such knowledge, from which it follows 
 that he is gnilty of negligence in permitting them to be at large. 
 Though the owner have no particular notice that the animal ever 
 did any such mischief before, 3'et if the animal be of the class that 
 \^fer(E natures and of a vicious disposition, like tigers, lions, bears, 
 etc., the owner is liable to an action of damage if it get loose and 
 do harm.' Owners are liable for the hurt done by the animal 
 even without notice of the propensity, if the animal is naturally 
 mischievous; but if it is of a tame nature, there must be notice of 
 the vicious habit.^ 
 
 Whoever undertakes to keep an animal y^^'ce wa^i^ros in places of 
 public resort is liable for the injuries inflicted by it on a party who 
 is not guilty of negligence.^ Plaintiff having been attacked and 
 
 •1 Hale, P. C. 430; Van Lemen v. Lyke, 1 N. Y. 516; Worth v. Gilling, L. R. 
 
 2 C. P. Z;May v. Burdett, 9 Q. B. 101; Seribaer v. Kelley, 38 Barb. 14; 
 
 Besozzi V. Harris, 1 Post. & P. 92. 
 ^Mason v. Keeling, 12 Mod. 332; Rex v. nuggins, 2 Ld. Raym. 1514. 
 ^Congress & E. Spring Co. v. Edgar, 99 U. S. 645, 25 L. ed. 487.
 
 630 mrosED duties, personal. [Part III. 
 
 injured in a park by a male deer belonging to the proprietors of 
 the park, the owners were held liable, upon a verdict of the jury 
 establishing their knowledge of the animal's vicious propensities.' 
 A person who keeps a monkey that it is dangerous to allow at 
 large is liable for injuries it may do to persons." 
 
 It would seem that when national zoological gardens are estab- 
 lished at the capital and public parks are occupied by collections of 
 wild animals and they have a recognized value for educational pur- 
 poses, the common -law rule must be somewhat relaxed, and a high 
 degree of care substituted for the rule of absolute responsibility in 
 case of wild animals kept for useful purposes. Indeed, the Court of 
 Appeals of New York practically recognizes this modification of the 
 old rule in Brice v. Bauer, 108 K Y. 428, 11 Cent. Kep. 327, in 
 case of an unusually large and savage dog, a cross between a blood 
 hound and mastiff, who desisted from his attempts to reach his 
 victim's throat, at his own hearth-stone, only when shot to death. 
 
 Section %Q.—Contrihittory Megli^ence in Case of 
 Injury from Animals. 
 
 If the plaintiff, by needlessly exposing himself or by annoying 
 intentionally an animal, bring the injury upon himself, on well- 
 established principle he cannot recover.^ If one wantonly excite 
 an animal he knows to be dangerous when thus aroused, and ex- 
 pose himself to the attack, it is not the negligence of the owner 
 in insecurely keeping the animal that causes the injury, but the 
 recklessness of the defendant in bringing the peril upon himself.* 
 In an action to recover for injuries received from a vicious dog, 
 the defendant had c6nceded that he knew the vicious propensities of 
 the dog, and insisted that ever since he had that knowledge he had 
 kept him securely chained in his barn during the day time, with 
 ^Congress & E. Spring Go. v. Edgar, 99 U. S. 645, 25 L. ed. 487. 
 *May V. Burdett, 9 Q. B. 101. 
 
 *WiUiams v. Moray, 74 Ind. 25; Weidev. Thiel, 9 111. App. 223; Keightlinger 
 V. Egnn, 65 111. 235; Eberhart v. Reister, 96 Ind. 478; Worthen v. Loce, 60 
 Vt. 285, 6 New Eng. Rep. 655; Carpenter v. Latta, 29 Kan. 591; Quimby 
 V. Woodbury, 63 N. H. 870; Ttcigg v. Ri/land, 62 Md. 380; Popplewell v. 
 Pierce, 10 Cush. 509; Woolfv. Ghalker, 31 Conn. 130; 5/wA;s v. Taylor, 65 
 Mich. 208, 8 West. Rep. 188. 
 *Muller V. McKesson, 73 N. Y. 195; Brock v. Gopeland, 1 Esp. 203; Lynch v. 
 McNally, 73 N. Y. 347.
 
 Chap. XXIX.] CONTRIBUTORY NEGLIGENCE. G31 
 
 the barn doors open, but left him unchained at night, with the 
 barn doors securely closed; and that he broke away and injured 
 the plaintiff by reason of being unlawfully provoked by the plain- 
 tiff, who had no lawful occasion to go to the barn where the dog 
 was chained. A judgment under these facts was held to be prop- 
 erly found for the defendant.' 
 
 As the duty is to keep the animal securely, so far as the owner's 
 personal conduct is involved, contributory negligence must be 
 clearly established to relieve from the consequence of the owner's 
 negligence. Thus, an accidental and slight injury to the dog will 
 not constitute such conti-ibutory neijlio-enee.' Nor will an unin- 
 tentional trespass or mistake in entering a house by a frequenter 
 thereof on a supposed invitation.' And even a trespasser may 
 recover if the owner be negligent.* The fact that the person in- 
 jured knew that a castrated bull or stag was in a pasture and was 
 dangerous would be important evidence tending to show negli- 
 gence in going into the pasture, but it cannot be said as matter of 
 law that it would conclusively prove it. This might depend upon 
 the size of the pasture, the position of the stag in it and other cir- 
 cumstances which are proper for the consideration of the jury. 
 The test is whether in entering the pasture the injured person ex- 
 ercised that degree of care which reasonable and prudent men use 
 under like circumstances. And if he was guilty of negligence 
 which contributed to his injury he could not recover, except under 
 the rule of comparative negligence, recognized in Illinois and 
 Georgia, although the negligence of the owner of the stag was of 
 a more gross and unpardonable character.' 
 
 Where it is proved that defendant, sued for damages for a dog 
 bite, owned a vicious dog, and knowing of his vicious propensities 
 failed to confine him, and that the dog attacked and bit plaintiff, 
 evidence that the latter was at the time moving at a rapid pace in 
 
 ' Worthen v. Love, 60 Vt. 285, 6 New Eng. Rep. G55. See EeightUnger v. 
 Egan, 65 111. 235. 
 
 ^Smith V. Pelah, 2 Strange, 1264 
 
 ^Woolfv. Chalker, 31 Conn. 121; Sarch v. Blackburn, 4 Car. & P. 297; Kdli/ 
 V. Tilton, 2 Abb. App. Dec. 495, 3 Keyes, 263; Li/nch v. McNalli/, 7 Daly 
 130, 73 N. Y.347; Mcibus v. Bodge, 38 Wis. 300; MtiUer v. J/cA'my/t, 73 
 N. Y. 195; Logrie v. Link, 4 E. D. Smith, 63. 
 
 *Loomis V. Terry, 17 Wend. 496; Slierfey v. Bartley, 4 Sueed. 58. 
 
 ^Marble y. Boss, 124 Mass. 44.
 
 632 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 the highway and talking in a somewhat loud tone is not suffi- 
 cient to support a verdict for defendant.' 
 
 It is contributive negligence in the owner of crops, knowing that 
 straying animals may stray over defective cattle-guards and destroy 
 the crops, not to use every means that ordinarily prudent persons 
 would use to protect them." 
 
 There can be no question that contributory negligence of the 
 plaintiff is a good defense to an action for bringing cattle suffering 
 from a contagious disease into the State." 
 
 That a child acts imprudently as compared with what would 
 have been the conduct of a grown man, but yet naturally for one 
 of its years, will not be held as contributory negligence in the 
 child. Thus, an action may be maintained for an injury done by 
 a dog to a boy thirteen years of age, although the boy struck the 
 dog and thereby incited it to bite, and was old enough to know 
 that his act would be likely to so incite the dog, if the boy was in 
 the exercise of such care as could reasonably be expected from a 
 boy of his age and capacity,* So, where a child offered a dog 
 candy and was bitten there was a recovery.* 
 
 Section ^l.—Buty of Owner of Animals Suffering 
 from Contagious Disease.— Warranty. 
 
 The owner of diseased animals is not in fault in keeping them, 
 and he is not liable to an adjoining owner whose cattle take the 
 disease, unless he knew of the disease and its danger and was in 
 fault in his manner of keeping the animals.' If one keep dis- 
 eased cattle upon his own premises and give notice to that effect, 
 he is not liable to the owners of cattle that stray upon his land, 
 notwithstanding he has no fence, and catch a contagious disease.^ 
 But one who, knowing that his cattle are infected with a contag- 
 ious disease, allows them to run at large on the range used 
 
 ^Dockerty v. Eaison (Ind. Sept. 18, 1890) 25 N. E. Rep. 144. 
 
 ^Ward V. Paducah & N. R. Co. 4 Fed. Rep. 863. 
 
 ^Patee v. Adams, 37 Kan. 133. 
 
 *Plumley v. Birge, 124 Mass. 57. See Meibus v. Dodge, 38 Wis. 300. 
 
 ^Lynch v. McNaUy, 7 Daly, 130, 73 N. Y. 347. 
 
 ^MiUs V. Neto Fork & H. R. Co. 2 Robt. 326, 41 N. Y. 619; Fisher v. Clark^ 
 
 41 Barb. 329. 
 ' Walker v. Herron, 22 Tex. 55.
 
 Chap. XXIX.] DUTY OF OWNER OF DISEASED ANIMALS. 633 
 
 by the cattle of another, whereby the latter's cattle become in- 
 fected and die, is liable at common law for the damaire thus caused 
 by his negligence; ' still more clearly, even without proof of 
 scieyiter^ if the animals trespass." 
 
 Where a railway company, transporting thrcmgh a State cattle 
 diseased with the Texas, splenic or Spanish fever, has its train 
 wrecked within the State, so -as to make it necessary to unload the 
 cattle, and thereupon it is notified that the cattle are from Texas, 
 and will spread disease if permitted to run at lai-ge or are driven 
 on the highway, it should corral the cattle at or near the wreck, 
 or otherwise prevent them from running at large or getting upon 
 the public highway; and if it drives the cattle upon the highway 
 or allows them to run at large, after receiving such notice, it is 
 liable for diseases communicated, unless the owners of the domes- 
 tic cattle are guilty of contributory negligence.^ No recovery 
 can be had, however, mider statutes enacted for the protection of 
 cattle against contagious diseases, against any person or corpora- 
 tion acting in good faith, unless such person or corporation had 
 knowledge, or such facts existed as to make the person or corpo- 
 ration chargeable with knowledge, that the cattle driven or trans- 
 ported into the State were of a kind liable to communicate the 
 disease to the domestic cattle of the State. ^ 
 
 Under the code practice in most of the States, the purchasers 
 of cattle bringing them into a locality and communicating infec- 
 tious Texas fever to another's cattle are properly joined as de- 
 fendants, in an action for damages therefor, where they assumed 
 such liability as part of the consideration for the purchase, and 
 personal judgment may be had against them and the vendor.' 
 
 A general warranty that an animal is sound and free from dis- 
 ease is necessarily a warranty against diseases of all kinds, includ- 
 ing those which are infectious or contagious, and renders the 
 warrantor liable for damages caused by the communication of such 
 a disease to other stock with which the animals sold are properly 
 
 ^Kemmish v. Ball, 80 Fed. Rep. 759. 
 
 ^Barnumv.Vandmen, 16 Conn. 200; Herrick v. Gari/, 65 111. 101; Cooke v 
 
 Waring, 2 Hurl. & C. 331; JSfoyes v. Colby, 30 N. H. 143. 
 ^Missoun P. R. Co. v. Finley, 38 Kan. 550. 
 
 *Missouri P. R. Co. v. Finley, 38 Kan. 550; Patee v. Adams, 37 Kan. 133. 
 ' Woodraum v. Clay, 33 Fed. Rep. 897.
 
 •{)3-i IMPOSED DUTIES, PERSONAL. [Plil't III. 
 
 placed in the ordinary conrse of business, and also for such other 
 damages and expenses as are the direct and natural result of the 
 hreach of warranty.' If animals sold are warranted sound and 
 are not so, but have an infectious or contagious disease which they 
 commnnicate to others, where the parties contemplate their being 
 placed with other stock, the loss, not only with respect to the ani 
 mals purchased, but to others to whom the warranted animals 
 communicate the disease, may be recovered, as well as the expense 
 of taking care of and doctoring them.* A general warranty does 
 not apply to patent and obvious defects." To bring the case with- 
 in this rule, the defects must be discernible by an ordinary ob- 
 server examining the property wnth a view to purchase, and not 
 requiring special skill to detect them.' It does not usually extend 
 to defects apparent on simple inspection, requiring no skill to dis- 
 cover them, or to defects known to the buyer; but the warranty 
 may be so expressed as to protect the buyer against consequences 
 growing out of a patent defect.* 
 
 In an action upon an alleged warranty of a mare, an instruction 
 that any representation as to her condition that seller intended 
 buyer should rely upon as a fact is a warranty is sufficiently spe- 
 <3ific.* A temporary and curable injury existing at the sale, but 
 which does not at the time injuriously affect the natural usefulness 
 and fitness of a horse for service, even if it be a fault, is not a 
 breach of a warranty of soundness.' The fact that a mare sold 
 was with foal is no breach of warranty that she was " all right 
 every way for livery purposes." * On a warranty that a horse is 
 ^11 right, except that he will sometimes shy, a recovery may be 
 
 ^Joy V. Bilzer, 77 Iowa, 73, 3 L. R. A. 184. 
 
 •^3 Sutherland, Damages, 435; Oliphant, Horses, 210, 311; Bradley v. Rea, 
 
 14 Allen, 20; Lascelles, Horse Warranty (3d ed.) 88. 
 ^Hill V. North, 34 Vt. 604; Williams v. Ingram, 21 Tex. 300; Dillard v. 
 
 ]!doore, 7 Ark. 166; McGormick v. Kelly, 28 Minn. 137; Vandewalker v. 
 
 Osmer, 65 Barb. 556; Hudgim v. Perry, 7 Ired. L. 102; Bennett v. Buchan, 
 
 76 N. Y. 386; Jordan v. Foster, 11 Ark. 141; Benjamin, Sales, Benn. 
 
 notes, 610-617. See Shupe v. Collender, 56 Conn. 489, 1 L. R. A. 339, 
 
 note. 
 ^Birdmje v. Frost, 34 Barb. 367. See Meickley v. Parsons, 66 Iowa, 63; 
 
 Vates V. Cornelius, 59 Wis. 615. 
 ^Storrs V. Emerson, 72 Iowa, 390. 
 
 ^Burnham v. Sherwood, 56 Conn. 299, 6 New Eng. Rep. 627. 
 ''Roberts v. Jenkins, 21 N. H. 116. 
 * Whitney v. Taylor, 54 Barb. 536; Benjamin, Sales, Benn. notes, 612.
 
 Chap. XXIX.] DUTY OF OWNER OF DISEASED ANIMALS. 635 
 
 had for partial blindness; the two are not necessarily synonymous.' 
 A statement, in a bill of sale of a horse, that he was " considered 
 sound," was held not to import an absolute warranty.' "Whether 
 *' corns " in a horse's foot is unsoundness has been held a question 
 for the jury.' A mere cold, controlled by ordinary remedies, is 
 not unsoundness.* Lameness may or may not be unsoundness; 
 •if permanent, it is; if only accidental and temporary, it is not.* 
 " Cribbing " is an unsoundness.' A horse may be unsound, at the 
 time of sale if he then has the seeds of disease (glanders), though 
 it be some time before the disease becomes developed in its most 
 offensive form. It is inchoate glanders at the time of sale.' The 
 •disease need not be incurable in order to be an unsoundness.' In 
 Kornegay v. White, 10 Ala. 255, it was held that any disease 
 which affects the value of the animal, whether permanent or tem- 
 porary, is an unsoundness.' 
 
 It is the duty of a party to protect himself from the injurious 
 •consequences of the wrongful act of another if he can do so by 
 ordinary effort and care and at moderate and reasonable expense; 
 and for such reasonable exertion and expense in that behalf he 
 may charge the wrong-doer." After an animal is injured the 
 owner's duty is to save himself harmless, if he can, and to do all 
 that prudence and good judgment dictate to relieve the defendant 
 from loss." If treatment is in good faith determined on, cost and 
 expense incurred in feeding, caring for and treating the animal 
 within reasonable limits would be a ])roper charge against the de- 
 fendant.''' Expenses incurred in good faith in attempting a cure 
 
 ^Kingsley v. Johnson, 49 Conn. 463. 
 
 "^Wason V. Rowe, 16 Vt. 525. 
 
 ^Alexander v. Button, 58 N. H. 282. 
 
 *Springstead v. Lawson, 23 How. Pr. 302. 
 
 ^ Brown v. Bigelow, 10 Allen, 242. 
 
 ^WaKhburn v. Cuddihy, 8 Gray, 430; Walker v. Iloisingion, 43 Vt. 608. 
 
 "< Woodbury v. Rabbins, 10 Cush. 520. 
 
 » Thompson v. Bertrand, 23 Ark. 731. 
 
 'Approved in Roberts v. Jenkins, 21 N. H. 119; Benj. Sales, p. C12. 
 
 "3 Parsons, Cent. 178; Field, Damages, 19; Harnson v. Missouri Pac. R. 
 Co. 88 -Mo. 625, 5 West. Rep. 395. 
 
 ^'^Gubit V. O'Dett, 51 Mich. 350; Bennis v. Iluyck, 48 Mich. 620. 
 
 ^'Addison, Torts, § 590; Sedgwick, Damages, 6lh ed. title Injury to Ani- 
 mals; Watson V. Lisbon Bridge, 14 Me. 201; Sutherland, Damages, p. 10(3; 
 Hughes v. Quentin, 8 Car. & P. 703; Dean v. Chicago & N. R. Co. 43 "\Vis. 
 308; Oleson v. Brown, 41 Wis. 415; Sullivan Co. v. Arnett, 116 Ind. 4^8.
 
 636 IMPOSED DUTIES, PERSONAL, [Part III» 
 
 may be recovered in addition to tlie actual value of tlie animal at 
 tlie time the injury occurred, in a suit for damages for an injury 
 to an animal by which it was rendered entirely worthless, although 
 defendant was not consulted in relation to tlie matter of the at- 
 tempted cure.' 
 
 In Murphy v. McGraw, 74 Mich. 318, it appeared on the trial 
 that the horse was worthless at the time of purchase by reason of 
 a disease called " eczema." The court charged the jury that if the 
 plaintiff was led by defendant to keep on trying to cure the horse 
 the expense thereof would be chargeable to the defendant, as 
 would also be the case if there were any circumstances, in the 
 judgment of the jury, which rendered it reasonable that he should 
 keep on trying as long as he did to effect the cure. The plaintiff 
 recovered for such expense and on appeal the charge of the trial 
 court was held correct. 
 
 The measure of damages in ordinary cases where property is 
 not entirely lost or destroyed, or practically and substantially so, 
 but is only impaired in value or partially destroyed, is the differ- 
 ence between the value before the injury and immediately there- 
 after, and reasonable expense incurred, or value of time spent, in 
 reasonable endeavors to preserve or restore the property injured;*^ 
 and if injured, the difference between its value before and after the 
 injury and the reasonable expense of its care, the temporary loss- 
 of its use and interest from the date of the action.' It is the 
 duty of one injured in his estate by the fault of another to use all 
 reasonable means to protect himself against injurious conse- 
 quences." 
 
 In the case of domestic animals injured, the proper rule of dam- 
 ages, as in the case of other perishable chattels, should usually be 
 the reduced value at the time." In Keyes v. Minneapolis <& St. 
 L. R. Co., 36 Minn. 200, the court stated that the owner was en- 
 titled to recover for the diminished market value of the animals 
 
 ^E'lis V. Hilton, 78 Mich. 150, 6 L. R. A. 454. 
 
 ''Field, Damages, 621; Eastman v. Sanborn, 3 Allen, 594; Harrison v. Mis- 
 souri Pac. R. Go. 88 Mo. 625, 5 West. Rep. 395. 
 
 ^Atlanta & WeM Point R. Co. v. Hudson, 62 Ga. 679; Jackson v. St. Louis, 
 I. M. & S. R. Co. 74 Mo. 526; Toledo, P. & W. R. Co. v. Johnston, 74 111. 
 83; Meyer v. Atlantic & P. R. Co. 64 Mo. 542; Whittaker's Smith, Neg. 98. 
 
 ^Lloyd V. Lloyd, 60 Vt. 288, 6 New Eog. Rep. 250. 
 
 ^Davidson v. Michigan Cent. R. Co. 49 Micb. 431.
 
 Ohap. XXIX.] CRUELTY TO ANIMALS. G37 
 
 after cure, and, in acMition thereto, sncli expense as lie incnn-ci] 
 in reasonable attempts to effect a cure, ])rovided the whole dam- 
 ages did not exceed the oriiriiial value of the property. 
 
 Section ^'S.— Cruelty to Aniinals. 
 
 An interesting and important judgment was recently delivered 
 by Lord Chief Justice Coleridge and Justice Hawkins on tlie 
 illegality of dishorning cattle." The case came before them by 
 way of appeal from a decision of the Norfolk magistrates at the 
 Petty Sessions. Mr. Wiley, a Norfolk farmer, had been sum- 
 moned at the instance of the Society for the Pi-evention of Cru- 
 elty to Animals for having unlawfully and cruelly tortured thirty- 
 two bullock by dishorning them. The facts were in no dispute. 
 Mr. Wiley admitted that he had done what was alleged, and gave 
 every facility to the officers of the societj' for ascertaining how it 
 had to be done and in what state the animals operated upon had 
 been left. That the operation, as performed on Mr. Wiley's farm, 
 had been attended with intense and prolonged suffering to the 
 animals was clearly proved, and does not seem to have been de- 
 nied. The defense set up was that it was necessary for a variety 
 of reasons. It added to the value of the animals; it enabled them 
 to be packed more closely than they could have been if they had 
 retained their horns, and it prevented them from inflicting injury 
 one on another, whether closely packed or not. The magistrates 
 in the event dismissed the case, but without costs, since they con- 
 sidered that the society had done great good by instituting it, and 
 at the request of the society they stated a case for the opinion of 
 the Queen's Bench judges, giving the reasons of their decision 
 and asking wliether the distnissal was to stand. The question has 
 been met with a decided negative by the judges to whom it has 
 been referred. The operation of dishorning, as it is ordinarily 
 practiced, and as it was practiced on Mr. Wiley's farm, has been 
 pronounced cruel and indefensible. " Detestably brutal," is Lord 
 
 ' See also Graves v. Moses, 13 Minn. 335; Oillett v. Weslern R. Corp. 8 Allen, 
 560; Wieeler v. Townshend, 42 Vl. 15; Streett v. Lavrnirr, 34 Mo. 469; 
 Johnson v. Rolyoke, 105 Mass. 80; Oleson v. Brown, 41 Wis. 413; Shelhy- 
 ville R. Co. V. Lewark, 4 Ind. 471; Neio Haven S*f,tmboat Co. v. Vander- 
 but, 16 Conn. 420; Williamson v. Barrett, 51 U. S. 13 How. 101, 14 L. ed. 68. 
 
 ^Fore V. Wiley, L. R. 23 Q. B. Div. 203, 40 xVlb. L. J. 270.
 
 638 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 Coleridffe's lanofuasre in describino; it. Mr. Justice Hawkins 
 terms it a revolting operation, so torturing that he shudders to- 
 til ink that men can be found to perform it. As to its absohite 
 illegality, both judges are in agreement. That it adds somewhat 
 to the selling value of the animals they hold to be no adequate de- 
 fense for it, the rather since the results aimed at can be attained 
 equally well without it. The cruelty of the operation, amounting 
 to downright torture, w^as proved by professional evidence, and 
 was substantially admitted by the defense. The main benefits of 
 it could be obtained by a more simple and painless process, ex- 
 cept, indeed, as far as it enabled the seller to put a fraud on an 
 incautious purchaser as to the animal's breed or age. As to its 
 alleged necessity, the court was clear that a practice which had for 
 many years been unknown or wholly discontinued in England and 
 Wales, and in most counties of Scotland, and had only recently 
 been introduced from Ireland, could not be thought necessary. 
 In any case, there must be some proportion between the object 
 aimed at and the means. In the case before the court no such 
 proportion could be found. The animals had been "hideously 
 tortured'' in order to put a few pounds more into the owner's 
 pockets ; and this. Lord Coleridge said, is an instance of sucli ut- 
 ter disproportion between the thing done and the result as to 
 stamp it as barbarous and unlawful. The end sought, Mr. Justice 
 Hawkins added, may not be attained at the sacrifice at which it 
 must be done. For a man to buy horned cattle and enhance their 
 value by mutilating them at the expense of excruciating torture 
 to the animals must be set down as needless cruelty. Some former- 
 cases, which have been decided in an opposite sense, were put 
 forward by the defense, but were set aside by the court with full 
 expression of the respect for the authorities before Avhom they 
 had been decided. The decision was, therefore, that dishorning 
 cattle was cruelty to animals. 
 
 The word "animal," in Mass. Pub. Stat., chap. 207, § 53, relat- 
 ing to cruelty to animals, includes all irrational beings. The 
 Statute applies only to foxes when they are in the custody of 
 men.* To let loose a fox for the purpose of being hunted by 
 dogs is cruelty to animals, under that Statute.* 
 
 ' ''Com. V. Turner, 145 Mass. 396, 5 New Eng. Rep. 265.
 
 Cliap. XXIX.] CKUELTY TO ANIMALS. 639' 
 
 An officer omitting to give an impounded beast reasonable food 
 and water becomes responsible in damages.' 
 
 The turpentining and burning in a wanton, crnel manner, a 
 goose, the property of another person, constitutes the offense of 
 cruelty to animals, under Ind. Stat. 1S81, § 2101." 
 
 One who overburdens a horse or misuses it is liable in a civil 
 action to the owner.' A shipper of cattle is entitled to recover 
 from the carrier for a loss in value of the stock by the gross neg- 
 ligence and carelessness of the agents of the latter in handling 
 and transporting the cattle, consisting of unnecessary delay in 
 transportation, needless confinement in the cars at different sta- 
 tions on the road and bruising and bumping them caused by im- 
 proper transportation.* So the carrier must feed and water the 
 stock.* In addition to this he must provide a place for sleeping, 
 and, if necessary, a place for exercise.' In most States statutes 
 impose a penalty for neglect of these duties.' 
 
 ^Adam>< v. Adams, 13 Pick. 384. 
 
 ■^State V. Bruner, 111 Ind. 98, 9 West. Rep. 602. 
 
 ^ Biggs & Clark's Case, 2 Leon. 104; Fox v. Young, 22 Mo. App. 386; Frost 
 
 V. Plumb, 40 Conn. Ill; Buggies v. Fai/, 31 Mich. 141; Austin v. Miller, 
 
 74 N. C. 274. 
 *Good V. Galveston H. & 8. A. R. Co. (Tex. April 30, 1889) 11 S. W. Rep, 
 
 854. 
 "Missouri Pac. R. Go. v. Fagan, 72 Tex. 127, 2 L. R. A. 75. 
 UlUnois Cent. R. Go. v. Adaim, 42 111. 474; loledo, W. cfi W R. Go. v. 
 
 Thompson, 71 111. 434; Cragin v. Ne^o York Cent. R. Co. 51 N. Y. 61;. 
 
 Taff Vale R. Go. v. Giles, 23 L. J. N. S. Q. B. 43; Great Northern R. Co. v. 
 
 Swaffield, L. R. 3 Exch. 132; Dunn v. Hannibal & St. J. R. Co. 68 Mo. 
 
 268; Harris v. Northern Ind. R. Go. 20 N. Y. 232. 
 ''Good V. Galveston, H. & 8. A. R. Go. (Tex. April 30, 1889) 4 L. R. A. 801,
 
 CHAFTEE XXX. 
 
 NEGLIGENCE IN USE OF FIRE. 
 
 Sec. 89. Duty Imposed upon a Person Using Fire. 
 
 a. Statute of 6 Anne, Chap. 3, Sec. 6, the Laiv at Present. 
 
 b. Duty to Use Care Proportioned to the Risk Involved. 
 
 c. Duty to Follow Fire on Other Lands to Extinguish It. 
 
 d. Burden of Proof of Negligence. 
 
 e. Rulings in New York and Permsylvayiia Courts and Else- 
 tvhere. 
 
 f. Liahility for Fire Indirectly Extended. 
 
 g. Intervening Cause. — Independent Wrongful Act of a Respon- 
 sible Person. — Natural Consequences. — Proximate Cause. 
 
 h. Fire Residt of One of Two Causes. 
 
 i. Statutory Provisions against the Kindling of Fires under 
 
 Certain Circumstances, and Requiring Fire-Escaiies to he 
 
 Placed upon Buildings. 
 
 Section Sd.—Duty Imposed upon a Person Using 
 
 Fire. 
 
 a- Statute of 6 Anne, Chap. 3, Sec. 6, the Law at 
 
 Present. 
 
 The Statute 6 Anne, chap. 3, § 6, enacted in 1707, providing 
 that "Ko action shall be maintained against any person in whose 
 house or chamber any lire shall accidentally begin," which had 
 been construed as though the Statute read " in whose house or 
 chamber any fire shall negligently begin," thus exempting from 
 liability, as Blackstone says, for the loss or damage sustained by 
 others, the owner or occupant through whose negligence or through 
 the negligence or carelessness of whose servants the fire was set, 
 his own loss being regarded as sufficient punishment for such neg- 
 ligence, has generally been considered as constituting a j art of the 
 common law of all or nearlv all the States of the Union. It was
 
 Chap. XXX,] DUTY IMPOSED UPON A PERSON USING FIRE. 641 
 
 looked upon as part of the law of the Colonies before the Revolu- 
 tion and during the period of their dependence upon the laws and 
 Constitution of Great Britain.' 
 
 The Statute of George III., chap. 78, § 86, enacted in 1774, 
 which enlarged that portion of the Statute of Anne, by declaring 
 tliat "No action, suit or process wliatever shall be had, maintained 
 or prosecuted against any person in whose house, chamber, stable, 
 barn or other building, or on whose estate, any fire shall after the 
 said 24th da}^ of June accidentally begin, nor shall an}- i-ecompcnse 
 be made by such person for any damage suffered therebjs" is held 
 to be in force in New York State and by statute in some other 
 States.' The Statute was passed on the eve of the Revolution and 
 had received at that time no judicial construction, but this Statute, 
 in Filliter v. Phijyjmrd, 11 Q. B. 347, was considered not to in- 
 clude cases of fire set or produced by negligence.' In Vaughan 
 V. 3fenlove, 3 Bing. N. C. 468, 4 Scott, N. R. 244, it had been 
 held that a right of action existed against a party for so negligently 
 •constructing a hay-rick on the extremity of his land that in conse- 
 quence of its spontaneous combustion his neighbor's house was 
 burned down; in that case no reference whatever was made to any 
 other statute. 
 
 The law may be thus stated: While he who by his negligence 
 or misadventure creates or suffers a fire upon his own premises, 
 which, burning his property, spreads immediately upon the adja- 
 cent premises of another and there destroys the latter's prop- 
 erty, is liable to him in an action for the damage which he 
 has suffered,' and this doctrine is not one which, once held, has in 
 latter days been questioned and discredited,^ yet he will only be 
 liable upon the ground of negligence. Where the defendant set 
 
 ^Lansing v. Stone, 37 Barb. 151. 
 
 ^Lansing v. Stone, 37 Barb. 151. But see Read v. Pennsylvania R. Co. 44 N. 
 
 J. L. 280. 
 ^Pantam v. Isham, 1 Salk. 19; Webb v. Rome, W. & 0. R. Co. 49 N. Y. 420; 
 
 Spaulding v. Chicago & N. W. R. Co. 30 Wis. 110. See Canterbury v. 
 
 Atty-Oen. 1 Phipps, Ch. 806, 315, 320. 
 ^Beaulieu v. Finglam, Y. B. 2 Hen. IV. fol. 18, pi. 6, cited by Denio, J., in 
 
 AUhorf V. Wolfe, 23 N. Y. 355. 3G6; Anonymous, Cro. Eliz. 10, j)!. 5; 
 
 lubervil v. Stamp, 1 Salk. 13; Panlam v. Iisham, Id. 19; Clark v. Foot, 8 
 
 Johns. 421. 
 ^Filliter v. Phippard, 11 Q. B. 347; Barnard v. Poor, 21 Pick. 378; Higgins 
 
 V. Dewey, 107 Mass. 491; Field v. New York Cent. R. Co. 32 N. Y. 339; 
 
 Smith V. London & S. W. R. Co. L. R. 5 C. P. 98. 
 41
 
 642 IMPOSED DUTIES. PERSONAL. [Part III. 
 
 Gilt a fire in his own inclosed field on a calm morning to burn drj 
 grass and stubble, and the wind changed and carried the fire into 
 his neighbor's field, he was not guilty of negligence in not antici- 
 pating the change in the direction of the wind.' 
 
 A man may set fire on his own land, and is not liable to an ac- 
 tion if the fire escape by slowly burning in the soil into his neigh- 
 bor's premises, though the fire is started in a dry time and nothing 
 is done to prevent its spread," No action can be maintained, un- 
 der Mo. Rev. Stat., § 2129, against a person who starts a fire upon 
 his land, for a legitimate purpose, which accidentally escapes to- 
 adjoining lands and does injury.* To create a liability, under this 
 Statute, the setting on fire of woods, etc., so as to occasion damage: 
 to any other person, must be an intentional and willful act.* 
 
 b. Duty to Use Care Froportioned to the Risk 
 
 Involved. 
 
 But the care must always be in proportion to the I'isk involved^ 
 and therefore one must not kindle a fire when there is apparent 
 danger that it will run or be carried upon his neighbor's premises.* 
 If one open the damper in a stove, surrounded by oil in cans, in a 
 close room, and leave the fire unguarded, he is answerable for the 
 resulting loss. In such a case it was held that the Statute 6 Anne, 
 chap. 3, § 6, is not in force in New Jersey.* So he is liable if he 
 negligently admit gas into a building, where it ignites.' 
 
 It is a tortious act to start a fire on a bed of turf or peat in a. 
 season of great drought when the ground is parched and dry, sa 
 that the fire will run through the bed of peat onto another's land 
 upon which the bed extends, and so as to cause serious loss to the 
 latter; and where one was guilty of such a positive wrong, he can- 
 not escape liability for an injury thereby to another, for the rea- 
 son that the fire burnt across the premises of third persons before 
 
 ^Sweeney v. Merrill, 38 Kan. 216. 
 
 ^McQibbon v. Baxter, 51 Hun, 587. 
 
 ^Rimell V. Reagan, 34 Mo. App. 242. 
 
 '^Kalile V. Hobein, 30 Mo. App. 473. 
 
 ^Rays V. Miller, 6 Hun, 320; Dewey v. Leonard, 14 Minn. 153. 
 
 ^Read v. Pennsylvania R. Co. 44 N. J. L. 280. 
 
 ''Blenkiron v. Great Central Gas Co. 3 L. T. N. S. 317.
 
 Chap. XXX.] DUTY nirosED uroN a person using fire. t)4;^» 
 
 it reached and did tlie iTijury to tlie lands of such other to wliich 
 the bed extended; an ordinary wind is not an independent inter- 
 vening agency.* As late as 1S5S, in the English Court of Ex- 
 chequer, Brain well, B.^ used the following language to the jury: 
 " If, to serve his own purposes, a man does a dangerous things 
 whether he takes precautions or not, and mischief ensues, he nnist 
 bear the consequences; that running engines which cast forth 
 sparks is a thing intrinsically dangerous, and that if a railway en- 
 gine is used which, in spite of the utmost care and skill on the 
 part of the company and their servants, is dangerous, the owners 
 must pay for any damage occasioned thereby." But in 18G0 it 
 was held, on an appeal of the case to the Exchequer Chamber (re- 
 versing the Court of Exchequer), that a railway company author- 
 ized by the Legislature to use locomotive engines is not responsible 
 for damage by fire occasioned by sparks emitted therefrom, pro- 
 vided it has taken every precaution in its power and adopted 
 every means which science can suggest to prevent injury from 
 fire, and is not guilty of negligence in the management of the en- 
 gine; and that, although it may be true that if a person keeps an 
 animal of known dangerous propensities, or a dangerous instru- 
 ment, he will be responsible to those who are thereby injui'cd, in- 
 dependently of any negligence in the mode of dealing with the 
 animal, or using the instrument, yet, when the Legislature has 
 sanctioned and authorized the use of a particular thing, and it is 
 used for the purpose for which it was authorized, and every pre- 
 caution has been observed to prevent injury, the sanction of the 
 Legislature carries with it this consequence: that if damage re- 
 sults from the use of such a thing, independently of negligence^ 
 the party using it is not responsible. Where the defendants used 
 fire for the purpose of propelling locomotive engines, they were 
 bound to take proper precautions to prevent injury to persons 
 through whose lands they passed; but the mere use of fire in such 
 engines did not make them liable for injury resulting from such 
 use, without any negligence on their part.' 
 
 Fii'e is a necessary agent in common use in life, and from its 
 employment under ordinary conditions negligence or wrong is not 
 
 ^Louisville, N. A. & C. R. Co. v. Nitsche (Ind. Dec. 9, 1890) 9 L. R. A. 750. 
 *Vaughan v. Taff Vale R. Co. 5 nurl. & N. 679.
 
 644 UMPOSED DUTIES, PERSONAL. [Part III. 
 
 necessarily inferable; Imt it may be so used as to make the person 
 using it guilty of a tortious act. This doctrine was declared in 
 the early years of the common law.' The rule has continued in 
 unbroken force through all the jurisprudence of the English- 
 speaking nations." A lawful act may be done in such a mode, 
 or under such circumstances, as to make it wrongful; and where 
 fire is used in an improper manner or under circumstances such as 
 inexcusably imperil surrounding or adjacent property the person 
 so using it is a wrong-doer.' 
 
 In Clark v. Foot^ 8 Johns. 422, the rule is stated as follows: 
 " If A sets fire to his own fallow ground (as he may lawfully do), 
 which communicates to and fires the woodland of B, his neighbor, 
 no action lies against A, unless there was some negligence or mis- 
 conduct in him or his servant." Except where this rule has been 
 modified by statute, it is recognized in this country generally. 
 Where a fire was communicated from a coal pit which the defend- 
 ant lawfully set on fire upon his own land, there could be no re- 
 •covery, except by affirmative proof of negligence." 
 
 Except in those States where, from extensive prairies causing 
 peculiar peril, or for other reasons of policy, the kindling of 
 fires in the open is forbidden or only permitted during certain 
 months, under penalty of actual or enhanced damages,^ or where 
 notice is required before starting the fire, unless waived by ad- 
 joining owners,^ every person has the right to kindle a fire on 
 his own land, for any lawful purpose; as, for clearing land and 
 
 ^Smith V. Frampton, 2 Salk. 644; Tabervilv. Stamp, 1 Salk. 13; Anonymous, 
 Cro. Eliz. 10. 
 
 ^Catron v. Mcliols, 81 Mo. 80; Miller v. Martin. 16 Mo. 508: Clark v. Foot, 
 8 .Johns. 421; Barnard v. Poor, 21 Pick. 378: Hanlon v. Ingram, 8 Iowa, 
 81; Fahn v. Reichart, 8 Wis. 255; FiUiter v. Phippard, 11 Q. B. 347; Mc 
 Remie v. McLeod, 10 Bing. 385; Cleland v. Thornton, 43 Cal. 437; Collins 
 V. Groseclose, 40 lud. 414. 
 
 *LouisvilU, N. A. & C. R. Co. v. Nitsehe (Ind. Dec. 9, 1890) 9 L. R. A. 750; 
 Oagg v. Veffer, 41 lad. 228; Freemantle v, London t& iV. W. R. Co. 2 Fost. 
 & F. 337; Aldridge v. Great Western R. Co. 3 Man. & G. 515; Vaughan 
 V. Menlom, 3 Bing. N. C. 468; Crogate v. Morris, Brownl. 197; Higgins 
 V. Dewey, 107 Mass. 494. 
 
 *Tourtellot v. Rosebrook, 11 Met. 460. 
 
 ^Armstrong v. Cooley, 10 III. 509; Burton v. McClellan, 3 111. 434; Johnson v. 
 Barber, 10 111. 425; Kahle v. Robein, 30 Mo. App. 472; Finley v. Langs- 
 ton, 12 Mo. 120; Conn v. May, 36 Iowa, 241; Ayer v. Starkey, 30 Conn. 
 304; Thoburnv. Campbell, 80 Iowa, 338. 
 
 ^Roberson v. Kirby, 7 Jones, L. 477; Saussy v. South Florida R. Co. 22 F\a,. 
 327.
 
 Chap. XXX.] DUTY IMPOSED UPON A PERSON USING FIRE. 645 
 
 purposes of husbandry, at a proper time and in a suitable man- 
 ner.' And if he uses reasonable care to prevent its spreadin<;an(l 
 doing injury to the property of others, no just cause of complaint 
 can arise. Yet, although the time may be suitable and the man- 
 ner prudent, if he is guilty of negligence in taking care of it, and 
 it spreads and injures the property of another in consequence of 
 such negligence, he is liable in damages for the injury done." In 
 an action for damages resulting from the destruction X)f property 
 by fire negligently set upon the prairies, the question of negli- 
 gence is alone for the jury to determine.' Proof that a farmer 
 on a windy day set fire to grass and stubble on his own land, which 
 were very dry and combustible, and near the land of another 
 farmer, is sufticient to cause the question of negligence to be sub- 
 mitted to the jury, in an action by such other farmer for dam- 
 ages caused by the fire.* Where defendant is sued for damages 
 caused by fires started by his servants, he may prove instructions 
 to his servants not to start fires.' The gist of the action is negli- 
 gence, and if that exists, and injury is done in consequence there- 
 of, the liability attaches; and it is immaterial whether the proof 
 establishes gross negligence, or only a want of ordinary care, on 
 the part of the defendant.' But a penalty imposed for "willfully" 
 setting fire to any woods, etc., is not incurred, where the fire re- 
 sulted from an attempt to burn log-heaps in clearing land and was 
 not to be anticipated; ^ nor when the fire was started to aid in 
 cutting timber to make charcoal, and accidentally escaped to an- 
 other's property.* 
 
 ^Bachelder v. Hcagan, 18 Me. 32; Dean v. McCarty, 2 U. C. Q. B. 448; OiU- 
 son V. North Gray R. Co. 33 U. C. Q. B. 129; Miller v. Martin, 16 Mo. 
 508; Frasery. Tapper, 29 Vt. 409; Falui v. lieichart, 8 Wis. 255; Fer- 
 guson V. Huhbell, 97 N. Y. 507. 
 
 ^newey v. Nourse, 54 Me. 256; Calkins v. Barqer, 44 Barb. 424; Filliter v. Phip- 
 pard, 11 Q. B. 347; Eanlon v. Ingram, 1 Iowa, 108; Stuart v. Ilawley, 
 22 Barb. &\d; Scott v. Hall, 16 IMe. 326; Deicei/ v. Leonard, 14 Minn. 153; 
 Haysv. Miller, 6 Hun, '620; Erippner v. Biebl, 28 Minn. 139; Garrett v. 
 Freeman, 5 Jones, L. 78: Hauck v. Hernandez, 41 La. Ann. 992. 
 
 ^Powers V. Craig, 22 Neb. 621. 
 
 ^Richards v. Schleusener, 41 Minn. 49. 
 
 ^Moe V. Job (N. Dak. May 6, 1890) 45 N. W. Rep. 700. 
 
 ^Bachelder v. Heagan, 18 Me. 32; Barnard v. Poor, 21 Pick. 380; Tourtellot 
 V. RoHcbrook, 11 Met. 462; Hewey v. Aoui-se, 54 Me. 259; Higgins v. Beio- 
 ey, 107 Mass. 494. 
 
 ''Kahle v. Hobeia, 30 Mo. App. 472. 
 
 ^Russell V. Reagan, 34 Mo. App. 243.
 
 646 IMPOSED DUTIES, peksonal! [Part III. 
 
 c. Duty to Follow Fire on Other Lands to. Ex- 
 tinguish It. 
 
 If one who had kindled a fire on his own land should see it 
 spreading, under tlie influence of a strono; and unexpected wind, 
 without which it would not have spread, and should then use every 
 possible effort to extinguish it before it reached the line of his own 
 land, but be unable to do so, it cannot in reason be claimed that he 
 could there cease his efforts, and be heard to say that he had dis- 
 charged the entire duty cast upon him by law and the clearest 
 principles of I'ight, and was not liable for the destruction of his 
 neighbor's house or barn by the fire of his own kindling, if it ap- 
 peared that by ordinary diligence he could have arrested the fire 
 soon after it had crossed his own line, and before it seriously in- 
 jured his neighbor. Having put in motion the destructive element, 
 nothing short of the exercise of due care to prevent injury from it 
 ought to relieve him from responsibility. He could not be heard 
 to say that the limit of his obligation was fixed by and as narrow 
 as the boundaries of his land. A failure under such circumstan- 
 ces to follow the fire across the line between him and his neigh- 
 bor, and to extinguish it when he could, could not be said to be 
 only the neglect of a social duty.' 
 
 In some of the States it is held to be the duty of a railway to 
 extinguish a fire, having its origin in the conduct of the compa- 
 ny's business, if this can be done by the exercise of ordinary care; 
 and the inquiry as to whether this duty arises in all cases, or only 
 in cases in which the fire originated through the company's neg- 
 ligence, seems not to have l)een deemed important.'^ In Kennedy 
 V. Hannibal (& St. J. R. Co., 63 Mo. 99, it was thus ruled, but 
 when the same case again came before the court, this ruling was 
 pronounced obiter and it was held the railroad company was not 
 guilty of negligence in not extinguishing a fire caused by no want 
 of care by the company. It could not berequired-that an express 
 train should be delayed and imperil the safety of the passengers, 
 to enable the railroad employes to put out a fire on the line of the 
 road, nor could the company be expected to keep men or material 
 
 ^Missouri P. B. Co. v. Platzer, 73 Tex. 117, 3 L. R. A. 639. 
 
 ^Brighthope R. Co. v. Bor/ers, 76 Va. 443; Bolke v. Cfiicngo & N. W. R. Co. 
 
 26 Wis. 538; Erd v. Chicago <& JH. W. B. Co. 41 Wis. 66; Bass v. Chicago, 
 
 B. & Q. B. Co. 28 111. 9.
 
 Ohap. XXX.] DUTY IMPOSED UPON A PERSON USING FIRE. C47 
 
 at every point prepared to extinguish iiniisual fires.' But this is 
 because tlie raih-oad company is organized for a public duty, and 
 the performance of this duty is more important tl\an tlie discharge 
 of any duty for the preservation of property, when tlie two con- 
 flict. But the private individual kindling a fire on his own prem- 
 ises must be prepared to guard it and prevent injury to his neigh- 
 ])ors if there be reasonable cause to apprehend danger.' Xor can 
 it be said that the effort to stop the spread of a fire, lawfully kin- 
 dled on one's own land, may cease at the instant it passes the 
 boundary, because a trespass would be committed by following it 
 iipon the adjoining land. The right to destroy property on an- 
 other's land to prevent the spread of fire rests upon the maxim 
 " JVecessitas ioiducit privilegium quoad jura privataP It is like 
 •entering another's land to escape death from a pursuer. The 
 owner of land has no such title as can exclude or forbid such en- 
 try. The right is higher than his title of ownership. This right 
 to enter upon and destroy property to prevent the spread of fire 
 is in the individual, as a natural right existing anterior and inde- 
 pendent of civil government or legal enactment.* If the duty to 
 stop the fire he has kindled rests upon the individual upon his 
 own land, as the duty is superior to mere title in land, it rests 
 equally upon him to continue his effort so long as it may promise 
 success wherever the fire extends. He has created the peril, and 
 he must, so far as effort in proportion to the danger involved can 
 accomplish it, remove the danger.* 
 
 •See also Bajm v. Syracme, B. & N. Y. R. Co. 103 N. Y. 313, 4 Cent. Rep. 
 518; Drew v. Oaylord Coal Co. (Pa. April 26, 188G) 3 Cent. Rep. 389. 
 
 ^O'Neil V. New York, 0. & W. R. Co. 115 N. Y. 79, 5 L. R. A. 591; Clelnnd 
 V. Thornton, 43 Cal. 437; Jordan v. Wi/att, 4 Gratt. 151; Collins v. Grose- 
 close, 40 Ind. 414; Ih'f/qlns v. Deiney, 107 Mass. 494; Iltiysv. Miller, 6 Hun, 
 323, 70 N. Y. 112; Vanghn v. Menhve, 3 Bin^. N. C. 468; Oarrett v. Fi-ee- 
 vtan, 5 Jones, L. 78; Bdrnard v. Pour, 21 Pick. 380; Tourtellotv. Rose- 
 brook, 11 Met. 462; Heicey v. Nourse, 54 Me. 259; Oibbons v. Wisconsin 
 Valley R. Co. 66 Wis. l^i; Ball v. Grand Trunk R. Co. 16 U. C. C. P. 252; 
 Tuberml v. Stamp, 1 Salk. 13, 12 Mod. 152; Littleton v. Co/e, 5 Mod. 181; 
 Eh-d V. Chicago & N. W. R. Co. 41 Wis. 65. 
 
 ^Bacon, Elem. Reg. 5; Broom, Leg. Max. *11; Noy, Maxims (Bering's ed.) 
 p. 30; Puff. lib. II. chap. 6, ^ 8; Witherspoon, Mor. Phil. 136, g 16; 2 
 Kent, Com. § 338; 6'tofte V. Acw York, 2~) Wend. 173; Anierican Print 
 Woi-ks V. Lawrence, 21 N. J. L. 248; Sucocco v. Geary, 3 Cal. 69; Mouse's 
 Case, 12 Coke. 63; 15 Vin. Abr. tit. Xece.ssiiy, A, 8; Maleverer v. Sj>inke, 
 1 Dyer, 360; Respublica v. Sparhawk, 1 U. 8. 1 Dall. 357, 1 L. ed. 174. 
 
 * Atchison, T. & 8. F. R. Co. v. Dennis, 38 Kan. 424; MjMsouri Pac. R. Co. v. 
 Donaldson. 73 Tex. 124; Missouri Pac. R. Co. v. Pmtzer, 73 Tex. 117, 3 
 L. R. A. 639.
 
 6-i8 IMPOSED DUTIES, PERSONAL. [Part III, 
 
 In Mayheio v. Bums, 103 lud. 328, 1 West. Eep. 5Y7, the right 
 of the land owner to enter upon the adjoining land and restore a 
 fence, which had fallen into an excavation on defendant's land 
 and created a nuisance on plaintiff's lot, was upheld.' One may 
 enter upon the property of another to abate a nuisance, and build- 
 ings may be torn down as nuisances during the spread of Asiatic 
 cholera.'' 
 
 d. Burden of Proof of JVegUgence. 
 
 Generally, where the fire is lawfully set or maintained, the bur- 
 den of proving negligence in the starting or control of the fire, to- 
 entitle him to a recovery, is upon the plaintiff.' There are, how- 
 ever, authorities holding that proof that the fire was started by an 
 engine on a railroad emitting sparks or dropping coals casts the 
 burden of disproving negligence upon the corporation.* And in 
 some States this rule is declared by statute, which creates also a 
 presumption of negligence against one starting a fire under special 
 circumstances or at certain places. Thus, the rule before the 
 adoption of Iowa Code, § 3890, relating to the liability of persons 
 setting prairie fires, that negligence must be shown to create a 
 liability, was changed by the adoption of that section, so as to cre- 
 ate a higher degree of liability, and to render a person setting fire 
 
 'See also State v. Flannagan, 67 Ind. 140. 
 
 ^Meeker v. Van Rensselaer, 15 Wend. 397; Van Wormerv. Albany, 15 Wend, 
 262. See Jones v. Williams, 11 Mees. & W. 176; Hart v. Albany, 3 Paige, 
 213, 3 N. Y. Ch. L. ed. 121; Shepardv. People, 40 Mich. 487; Penrud- 
 dock's Case, 5 Coke, 101; Baviesv. Williams, 16 Q. B. 546; Barling v. 
 Peed, 11 Q. B. 904; Occtiin Co. v. Sprague Mfg. Co. 34 Conn, 539. 
 
 *Tourtellot v. Rosehrook, 11 Met. 460; Sturgis v. Robbins, 03 Me. 289; Bach- 
 elder V. Reagan, 18 Me. 32; Ruffner v. Cincinnati, H. & B. R. Co. 34 Ohio- 
 St. 96; Collins v. JSfew York Cent. & H. R. R. Co. 5 Hun, 503; McCaig v. 
 ErieR. Co. 8 Hun, 599;/eJem v. Philadelphia, W. & B. R. Co. 3 Houst. 
 447; Loicney\. New Brunswick R. Co. 78 Me. 479, 3 New Enff. Rep. 
 268; Biamond v. Northern Pac. R. Co. 6 Mont. 580; Jennings v. Pennsi/l- 
 mnia R. Co. 93 Pa. 337; Albert v. Northern Cent. R. Go. 98 Pa. 316; la- 
 dianapolis & C. R. Co. v. Paramore, 31 Ind. 143; McCummons v. Chicago- 
 & N. W. R. Co. 33 Iowa, 187; Macon & W. R. Co. v. McConnell. 27 Ga. 
 481; Ferov. Buffalo & S. L. R. Co. 22 N. Y. 209; Pittsburgh, C. & St. 
 L. R. Co. V. Hixmi, 109 Ind. 225, 8 West. Rep. 888. 
 
 *Lawton v. Giles, 90 N. C. 374; Gaheston, H. & S. A. R. Go. v. Home, 6» 
 Tex. 643; Seska v. Chicago, M. &8t. L. R. Co. 77 Iowa, 137; Longabaugh 
 V. Virginia & T. R. Co. 9 Nev. 271 ; Anderson v. Wasatch & J. V. R. Co. 
 2 Utah, 518; Piqgott v. Eastern Counties R. Co. 3 C. B. 229; Pittsburgh,. 
 a. &8t. L. R. Co. V. Campbell, 86 111. 443; Spatddingv. Chicago & N. W. 
 R. Co. 30 Wi« 110; Burlington & M. R. R. Co. v. Westover, 4 Neb. 268; 
 Burke v. Louisville & N. R. Co. 7 Heisk. 451.
 
 Chap. XXX.] DUTY IMPOSED UPON A PERSON USING FIRE. 041) 
 
 and allowing it to escape within the prohibited period absolutely 
 liable for the consequences, irrespective of the degree of diligence 
 used to prevent its escape after being set by liiin.' But this is a 
 departure from the general rule wliieh we are now considering. 
 
 In an action for the recovery of damages resulting from a fire 
 kindled upon the property of the defendant, it is necessary that the 
 plaintiff should show that the fire was unlawfully kindled, or neg- 
 ligently kindled or guarded," and there exists no presumption of 
 negligence as at common law.' 
 
 e. Rulings in j\^ew Yorh and Pennsylvania 
 Courts and Elsewhei^e. 
 
 In New York and Pennsylvania the liability for injury to other 
 property caused by fire on one's own property was, in Ryan v. 
 Neio York Cent. R. Co., 35 N. Y. 210, and Pennsijlvania R. Co. 
 V. Kerr, 62 Pa. 353, confined within narrower limits than else- 
 where. It had been held in the former State that where a man's 
 house or other building takes fire, even by his own or his servant's 
 negligence, and the fire spreads and consumes his neighbor's prop- 
 erty, he cannot be held liable for the hitter's loss, the interest a 
 man has in preserving his own property being the only protection 
 to his neighbors.* In Ryan v. Neio York Cent. R. Co., supra, 
 where a railroad company, either by the carelessness of its serv- 
 ants or a defect in its locomotive, set tire to one of its wood- 
 sheds and the fire destroyed a large quantity of wood, and wa& 
 then carried by sparks and heat to plaintiff's house 130 feet away, 
 and consumed it and other buildings, no relief was granted against 
 the railroad on the ground that the loss was the remote and not 
 the proximate cause. It is said that if an engineer on a steamboat 
 or locomotive carelessly lets sparks or coals fall upon and consume 
 the house of A, the employer will be liable; but if the fire com- 
 municates to the house of B, and, consuming that, then to the 
 house of C, and so on through the town, only A can recover, as- 
 
 ^Thoburn v. Campbell, 80 Iowa, 338. 
 
 ^Read v. Pennsylvania R. Go. 44 N. J. L. 280. 
 
 'Bachelder v. Heagan, 18 Me. 32; Beaulieu v. Finglnm, Y. B. 2 Hen. IV. 
 
 fol. 18, pi. 6, cited in note to AUhorfv. Wolfe, 22 N. Y. 360, 367. 
 *Lansing v. Stone, 37 Barb. 15.
 
 650 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 the other losses are remote. In Webb v. Rome^ W. & 0. R. Co.^ 
 49 N. Y. 420, the fire which was communicated to defendant's 
 track proceeded from the ties to an accumulation of weeds and 
 grass cut down on the side of the track. From thence it was con- 
 ducted to a fence, and then upon the plaintiff's land, burning the 
 trees and soil and finally doing the damage complained of. The 
 railroad was held liable and the ruling in Ryan v. New Yorh Cent. 
 R. Co.., supra, was distinguished on the ground that in that case, 
 and in Pennsylva7iia R. Co. v. Keri\ 62 Pa. 353, which approved 
 and followed it, the injury was not necessarily to be anticipated 
 from the fact of the original fire; it was not an ordinary, natural 
 and usual i-esult from such a cause, but one dependent upon the 
 degree of heat, the state of the atmosphere, the condition and ma- 
 terials of the adjoining structures and the direction of the wind, 
 which are said to be circumstances accidental and varying. A 
 consideration of the relations of men to each other in populous 
 villages and cities and the disastrous consequences to follow from 
 holding one liable for his own or his servant's negligence, by which 
 a fire kindled in his house spreads to the property of one or 
 more neighbors, is said to fortify the conclusions there reached. 
 Where several buildings in succession take fire, each from another, 
 and burn, the sparks which set the first one being carried past the 
 last one burned by a strong wind which changed its direction and 
 subsided before the latter buildings took fire, while lack of fire 
 apparatus or ladders prevented extinguishing the fire at the be- 
 ginning, the burning of the last building is not the proximate re- 
 sult of the setting fire to the first one.' But damage caused by 
 the explosion of a powder magazine which was located upon a lot 
 smaller than that required by an ordinance is caused by violation 
 of the ordinance." In the Webb Case, supra, the negligence was 
 said to consist in dropping the live coal on the track in the then 
 condition of the ties, the dry grass, the strong wind, the fence, etc. 
 In Pollett V. Long, 56 ]N". Y. 200, where the defendant's dam had 
 given way and carried away a dam of the plaintiff, and by increasing 
 the volume of water tore out the dam of a third party, of whom plain- 
 tiff was assignee, the court charged in substance that defendant's neg- 
 
 ^Readx. Nichols, 118 N. Y. a24. 7 L. R. A. 130. 
 
 ^L'lflin d R. Poioder Co. v. learney, 131 111. 332, 7 L. R. A. 262.
 
 "Chap. XXX.] DUTY IMPOSED UPON A PERSON USING FIRE. 651 
 
 liffence must liave been the sole cause of the iniury or tliere could 
 be no recovery; that althono;h defendant's dam was detective and 
 out of repair, and in consequence gave way, if there was sufhcient 
 water in the middle pond when its dam gave way to materially in- 
 crease the volume and force of the stream, then plaintiff could not 
 recover for injuries to the lower dam, as the damages were too 
 remote. This was held error, and it was said: "Assuming that 
 this rule was correctly applied in the case of Ryan v. New York 
 Central ... it comes far short of sustaining the proposi- 
 tion under consideration." To the same effect was the ruling in 
 Thohurn v. Campbell, 80 Iowa, 338, where, in an action against 
 defendant for damages suffered from a back fire started by defend- 
 ant, it was held error to instruct the jury that if the prairie tire was 
 so much stronger than that kindled by defendant as to'absorb it 
 -without material gain of force, defendant was not liable. The true 
 question was, Which iire caused the burning of the property ? 
 
 In Lowery v. Manhattan B. Co., 99 N. Y. 158, fire fell from 
 defendant's locomotive upon a horse and upon the hand of the 
 driver. The horse became frightened and ran away, and the driver 
 attempted to turn him against the curb-stone, but the wagon passed 
 over the curb-stone, threw the driver out, and plaintiff, who was 
 on the sidewalk, was run over and injured. It was held that so 
 long as the injury was chargeable to the original wrongful act of 
 the defendant it was liable; that the action of the driver, in view 
 of the emergency of the occasion, whether prudent or otherwise, 
 might "be considered as a continuation of the original act, and so 
 that act was the proximate and not the remote cause of the injury; 
 and the injury was a natural and probable consequence of defend- 
 ant's negligence. 
 
 In Tanner v. New Fork Cent c& IL R. R. Co., 10$ X. Y. 623, 
 11 Cent. Rep. 82, the action was for loss of goods destroyed in a 
 freight car, by fire communicated by sparks from a locomotive to 
 a freight house, and thence to the car, which stood on a side track. 
 It is said the burning of the car was, under the conditions existing 
 at the time, a natural result of the burning of the freight house, 
 and if this was attributable to the negligence of the defendant, it 
 is responsible for the loss of the plaintiffs goods. In Tlii^e v, 
 •Cushing, 53 Ilun, 519, through the negligence of defendant in
 
 652 IMPOSED DUTIES, PERSONAL. [Part III, 
 
 making a new pier, and removing an old pier, which served as a 
 support to his building, it fell, and the fall caused its burning 
 from tires on the different floors, and also the burning of an ad- 
 joining building, which was served bj a common stairway and eleva^ 
 tor in a common hall. A distinction was taken between the Ryan 
 Case, supra, in that there was an intervening fact or circumstance 
 in that case, by which the fire was carried from one building to 
 the other, and in the case in judgment the fire immediately burned 
 its way through the space occupied by the elevator, closets and 
 stairs, into the building in which the plaintiff carried on his busi- 
 ness, and it progressed so rapidly as to prevent the removal of his 
 property. The fall of the building was the cause of the fire, and 
 naturally and inevitably it burned its way through until the other 
 building was reached, and plaintiff's property destroyed, and de- 
 fendant was liable therefor as being the proximate cause thereof. "■ 
 Where a small wooden shanty was constructed by the defendant,, 
 near the plaintiff's house, not sufficient room being left for a pass- 
 age between, and waste and oil and other inflammable material 
 was placed in the shanty, and a soft-coal stove, with a pipe extend- 
 ing through the wooden roof, was permitted to be used, the burn- 
 ing of plaintiffs house through the destruction of the shanty by 
 fire was held the proximate result, and, the jury having found neg- 
 ligence in the defendant, it was declared liable.^ 
 
 It is not probable that the Ryan Case or the Kerr Case will 
 ever serve to support any future departure from the line of decis- 
 ion consistently followed by the other courts in cases of the spread 
 of fire by means of wind from one building to another. 
 
 The Supreme Court of Illinois, in Fent v. Toledo, P. db W. R. 
 Co., 59 111. 349, 14 Am. Eep. 13, where a warehouse near the track 
 was set on fire by an engine, and, the weather being dry and the 
 wind blowing freely towards plaintiff's house, 200 feet awaj^, it was 
 destroyed, declined to follow these cases, asserting that they stood 
 
 'See also Briggsv. New York Cent. &H. R. R.Co. 72N.Y. 26; Wasmery. Dela- 
 ware, L. & W. R. Co. 80 N. Y. 213, 36 Am. Rep. 608; Seeley v. New York 
 Cent. R. Co. 103 N.Y. 719; Penmylmnia R. Co. v. Hope, 80 Pa. 373, 21 Am. 
 Rep. 100; Oil Creek & A. R. Co. v. Keighron, 74 Pa. 316; Kellogg v. Chi- 
 cago & N. W. R. Co. 26 Wis. 224; Perley v. E<Mern R. Co. 98 Mass. 414; 
 Biqgim v. Dewey, 107 Mass. 494; Fent v. Toledo, P. <& W. R. Co. 59 111. 
 349; Field v. New York Cent. R. Co. 32 N. Y. 339. 
 
 *ran Fleet v. New York Cent. & H. R. R. Co. (Sup. Ct. Nov. 9, 1889) 27 N. Y. 
 S. R. 76.
 
 Oliap. XXX.] DUTY IMPOSED UPOX A PERSON USING FIRE. 653 
 
 alone in the narrowness of the rule thej prescribed on the sub- 
 ject of proximate damages. In BiUman v. Indianapolis^ C. 
 (& L. R. Co., 7G Ind. 16G, 40 Am. Rep. 230, these cases were also 
 strongly disapproved, but in Pennsylvania Co. v. Whitloch, 99 Ind. 
 16, it is admitted that the case under consideration in 76 Indiana 
 had no close analogy to the cases disapproved, and that court was 
 not therefore irrevocably committed to any particular construction 
 of those cases in their application to the class of cases to which 
 they strictly belong; but the court regards the implied criticism of 
 Judge Cooley in his work on Torts, p. 76, as a just one, and re- 
 marks: "Both these cases have been distinguished, and had as- 
 signed to them a rather restricted and qualified value as precedents, 
 but neither one has been held to have been wrongly decided upon 
 the facts upon which it especially rested by any of the cases above 
 •enumerated (the later cases in New York and Pennsylvania), or to 
 have been without some support both in reason and in justice.'" 
 The court then proceeds to deny the liability of a railroad company 
 where the complaint alleged that its servants and employes negli- 
 gently, but, nevertheless, accidentally, set fire to the station-house 
 adjacent to the plaintiff's hotel, and while the station-house was 
 on fire and being consumed, the wind intervened and blew some 
 of the sparks and flames over unto the hotel building, thus com- 
 municating the fire also to it, and causing it, with the personal 
 property, to be burned up and destroyed. It is said that the com- 
 plaint does not charge, either in direct terms, or in equivalent 
 words, that the destruction of the hotel building was the natural 
 as' well as the immediate and proximate consequence of the burn- 
 ing of the station-house. It is said that the decision in Louisiana 
 Mat. Ins. Co. v. Tweed, 74 U. S. 7 Wall. 44, 19 L. ed. 65, in 
 -svhich the Supreme Court of the United States refused to recog- 
 nize the wind, which had carried sparks and flames from one 
 building to another in that case, as the intervening of a new force 
 or power, was due to the construction of a peculiarly worded policy 
 of insurance and not as an incident of any question of negligence.' 
 In Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. 
 ed. 256, the action was against the railroad company for negli- 
 
 'Citing Pithburgn, C. & 8t. L. R. Co. v. Culver, 60 Ind. 469. See also Pitts 
 burgh, C. d St. L. R. Co. v. Hixon, 79 Ind. Ill; Louisoille, K. A. <& C. 
 B. Co. V. 2ihlert, 87 Ind. 339.
 
 654 IMPOSED DUTIES, PERSONAL. [Part III^ 
 
 gently setting fire to its elevator standing on the bank of the Mis- 
 sissippi River, by means of which fire was communicated to the 
 plaintiff's saw-mill and lumber, a distance of 538 feet, and the mill 
 and lumber were destroyed. The court held the railroad liable, 
 declaring the true rule to be that what is the proximate cause of 
 an injury is ordinarily a question for the jury, and not one either 
 of science or of legal knowledge, and disapproving the Ryan and 
 Kerr Cases in so far as they might be construed as enunciating a, 
 different rule.' 
 
 f. Liability for Fire Indirectly Extended. 
 
 The courts have usually refused to limit the liability to cases 
 where the fire has been indirectly carried to the property burned, 
 if this consequence could be reasonably expected in the existing 
 conditions of the atmosphere.'' But wdiere a fire extends from one 
 building to another successively through several, the sparks which 
 set the first one being carried past the last one burned by a fierce 
 
 iSee Adams v. Toung, 44 Ohio St. 80, 3 West. Rep. 145; Toledo, P. & W. 
 R. Co. V. Pindar, 53 111. 447; Fent v. Toledo, P. & W. R. Co. 59 111. 349; 
 Powell V. Deveney, 3 Cush. 300; Vanderburgv. Truax, 4 Denio, 464; Hart 
 V. Western R. Corp. 13Met. 99; Perley v. Eastern R. Co. 98 Mass. 414; Cleve- 
 land V. Grand Trunk R. Co. 42 Vt. 449; Smith v. London & S. W. R. Co. L. 
 R. 5 C. P. 98, L. R. 6 C. P. 14; Piggott v. Eastern Counties R. Cu.S C. B. 229; 
 Crandall v. Ooodrich Transp. Co. 16 Fed. Rep. 75; Missouri Pae. R. Co. v. 
 Texas & P. R. Co. 31 Fed. Rep. 526; Illinois Cent. R. Co. v. McClelland, 42 
 111. 355, 360; Delaware R. Co. v. Sahnon, 39 N. J. L. 300; Toledo, W. & W. R. 
 Co. V. Mutlmrsbaug, 71 111. 572; Ktihn v. Jeicell. 32 N. J. Eq. 647; Chicago- 
 & A. R. Co. V. Pennell, 110 111. 435; Hoyt v. Jeffers, 30 Mich. 181; Small 
 V. Chicago, R. I. & P. R. Co. 55 Iowa, 5»2; Henry v. Southern Pac. R. Co. 
 50 Cal. 183; LouisviUe, If. A. & C. R. Co. v. Krinning, 87 Ind. 351; Poep- 
 persv. Missouri, K. & T. R. Co. 67 Mo. 715; Gulf, C. & 8. F. R. Co..v. 
 Witte (Tex. May 17, 1887) 4 S. W. Rep. 490; Flynn v. San, Francisco <fr 
 8. J. R. Co. 40 Cal. 14; Philadelphia, W. & B. R. Co. v. Constable, 39 Md. 
 149; Small v. Chicago. R. I. & P. R. Co. 55 Iowa, 582. 
 
 mart V. Western R. Corp. 13 Met. 99; Pratt v. Atlantic cfe St. L. R. Co. 42 
 Me. 579; Lyman v. Boston & W. R. Corp. 4 Cush. 288; Pierce v. Worcester 
 & N. R. Co. 105 Mass. 199; Mihoaukee & St. P. R. Co. v. Kellogg, 94 U. 
 S. 468, 24 L. ed. 250; Burlington cfc M. R. R. Co. v. Westover, iNeh. 268; At- 
 chison, T. & 8. F. B. Co. V. Bales, 16 Kan. 252; Coates v. Missouri, K. & T. 
 R. Co. 61 Mo. 38; Atkinson v. Goodrich Transp. Co. 60 Wis. 141; Lehigh 
 Valley R. Co. v. McKeen, 90 Pa. 122; Indiana, B. & W. R. Co. v. Overman, 
 110 Ind. 538, 8 West. Rep. 385; Annapolis & E. R. Co. v. Qantt, 39 Md. 
 115; Fent v. Toledo, P. & W. R. Co. 59 111. 349; Delaware, L. <& W. R. 
 Co. V. Salmon, 39 N. J. L. 300; Henry v. Southern Pac. R. Co. 50 Cal. 
 183; Billmanv. Indianapolis, C. & L. R Co. 76 Ind. 166; Higgins v. 
 Dewey, 107 Mass. 494; Small y. Chicago, R. 1. & P. R. Co. 55 Iowa. 583;. 
 Seeley v. New York Cent. & H. R. R. Co. 102 N. Y. 719, 3 Cent. Rep. 743; 
 Hoyt V, Jeffers, 30 Mich. 181; Missouri Pac. R. Co. v. Texas & Pac. R. Co. 
 31 Fed. Rep. 526.
 
 Chap. XXX.] DUTY IMPOSED UPON A PERSON USING FIUE. 055 
 
 wind, which changed its direction and subsided before the last 
 building cauglit fire, and want of fire appliances or ladders pre- 
 vented the putting out of the tire at its inception, the burning of 
 the last building will not be treated as the proximate result of the 
 setting fire to the first one.' The fact that land of a third party 
 intervened between the buildings or structures burned is not alone 
 decisive in all cases. Other circumstances may control, and it may 
 appear from the evidence that the result was to have been antici- 
 pated from the moment the negligent act started the fire at the 
 place of its origin, and that the destruction which followed was 
 the natural and direct effect of the negligent act. If so it is not 
 too remote.* 
 
 g- Intervening Cause. — Independent Wrongful 
 Act of a Responsible Person.— JVatural Conse- 
 quences.— Proximate Cause. 
 
 In an action against a mill owner for damages to property 
 caused by fire negligently or carelessly thrown by sparks from the- 
 smoke-stack of a mill and carried to the property by a gale of 
 wind blowing at the time in the direction of the property, by 
 which fire the same was damaged, where the conditions continue 
 the same as when the negligent and careless act was done, and no 
 new cause intervenes, it is not a defense that the fire first burned 
 an intervening building and was thence communicated by sparks 
 and cinders in the same manner to the building in which such fire 
 consumed the property, tliough the buildings were separated by a 
 space of two hundred feet.' 
 
 It may be stated as the true and guiding rule, that unless the 
 wrong and damage are known to be usually in consequence the 
 damage according to the ordinary course of events, following from 
 the particular wrong, they will not support an action.* But the 
 
 ^Read v. Mchoh, 118 N. Y. 224, 7 L. R. A. 130. See Louixville, N. A. & 0. 
 
 R. (Jo. V. mtsche (Ind. Dec. 9, 1890J 9 L. R. A. 750. 
 Wandenburfffi v. IVunx, 4 Denio, 464; Pollett v. Long, 5G N. Y. 200; Webb- 
 
 V. Ro7ne, W. & 0. R. Co. 49 N. Y. 420; O'Neill v. New York, 0. & W. R. 
 
 Co. 115 N. Y. 579, 5 L. R. A. 591. 
 ^Adams v. Young. U Ohio St. 80, 3 West. Rep. 145. 
 *Mackv. Lombard & SC. P. R. Co. (C. P. Pa.) 18 Wash. L. Rep. 84; Selleck v. 
 
 Langdon, 55 Hun, 19; Wright v. Chicago & X. W. R. Co. 27 .111. Aiip. 
 
 200; Adkins v. Atlanta & C. A. L. R. Co. 27 S. C. 11; Hudson, v. Wabaah 
 
 & W. R. Co. 32 Mo. App. 667.
 
 €56 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 negligence of a responsible agent intervening between the defend- 
 ant's negligence and the injury suffered, i. 'e. the damage, breaks 
 the causal connection.' 
 
 In civil cases a defendant is not responsible for results, except 
 such as are natural, proximate and direct. If such consequen- 
 ces are caused bj the acts of others, so operating on his act as 
 to produce the injurious consequences, then he is not liable." Un- 
 usual and improbable results are not to be anticipated, but usual 
 or probable ones must be.° 
 
 The delivery of cotton at sheds by the insured is not the proxi- 
 mate cause of a loss occasioned by the failure of a can-ier to trans- 
 port it promptly, and its negligence in allowing the cotton to ac- 
 cumulate in large quantities." Where plaintiff's building was 
 consumed by fire originating in a wooden building adjacent to that 
 of the plaintiff, the act of negligence in building the wooden or 
 frame structure with all its sides closed, in violation of the city 
 ordinance, was not the proximate and immediate cause of the injury 
 complained of.^ But under a marine policy upon a canal boat, 
 with the privilege of carrying lime barrels, insuring against perils 
 on inland waters and fires, where, upon discovery of a fire, the 
 cargo on deck was removed, and the heat was so intense that the 
 barrels in the hold could not be unloaded, and the boat was scut- 
 tled, the fire was the direct cause of the loss.' 
 
 Where a stringer of a bridge breaks M'hile a person is hauling a 
 steam boiler filled with hot water and a steam-engine over the bridge, 
 and his horses are injured by the steam escaping from the boiler, 
 the breaking of the bi-idge is the proximate cause of the escape of 
 the steam and water, and the township is liable for the damage if 
 
 ^Mahogany v. Ward, 16 R. I. — ; Kidder v. Dunstable, 7 Gray, 104; Shepherd 
 V. Chelsea, 4 Allen, 113; Emporia v. Schmidling , 33 Kan. 485. 
 
 2See States. liankin, 3 S. C. 438; Whatlej/ v. Murrell. 1 Strobh. L. 389; 
 Harrison v. Berkley, Id. 548; Carey v. Brooks, 1 Hill, L. 365; Hill v. Port 
 Royal S W. 0. B. Co. (S. C. July 6, 1886) 5 L. R. A. 351. 
 
 ^Billman v. Indianapolis, C. & L. R. Co. 76 Ind. 166; Dunlap v. Wagner, 
 85 Ind. 529, 44 Am. Rep. 42; Wabash, Si. L. & P. B. Co. v. Locke, 112 
 Ind. 404, 11 West. Rep. 877; Louisville, N. A. & G. R. Go. v. Wood, 113 
 Ind. 544-556, 12 West. Rep. 303, and cases cited; Clore v. Mclntire, 120 
 Ind. 262-265; Cincinnati, I. St. L. & C. R. Co. v. Gooper, Id. 469-472; 
 Terre Haute & L R. Go. v. Clem, 123 Ind 16, 7 L. R. A. 588; Lane v. 
 Atlantic Works, 111 Mass. 136; Hill v. Winsor, 118 Mass. 251. 
 
 ^Marine Ins. Go. v. St. Louis, L M. & 8. R. Co. 41 Fed. Rep. 643. 
 
 ^Mathiason v. Mayer, 90 Mo. 585, 7 West. Rep. 739. 
 
 ^Singleton v. Phoenix Ins. Co. 57 Hun, 590.
 
 Chap. XXX.] DUTY IMPOSED UPON A PERSON USING FIRE. 657 
 
 it has been netrligcnt in respect to the bridge.' Where one started 
 a fire to remove combustible material from his ground, on a bed 
 of turf or peat, at a season of great drouglit, the fact that the fire 
 crossed the land of two other persons before reacliing the plain- 
 tiff's ground will not relieve the person starting the fire from lia- 
 bility to the latter." The act of setting out a fire at such a season 
 and on an infiammable and continuous bed of peat was a positive 
 wrong, and not mere passive negligence; so that the case falls 
 within the rule declared in the famous Squib Case, which courts 
 have so often and so strongly approved.^ 
 
 Extraordinary winds may justly be regarded as independent in- 
 tervening agencies, but not so winds which are usual and prevail 
 without disturbing the normal condition of nature. One who is 
 himself without fault has, in justice and common fairness, a right 
 to recover from one who has caused him loss by a tortious act, 
 although an ordinary natural occurrence entered into the chain of 
 events which culminated in the loss. It is, in truth, impossible to 
 conceive a case wherein loss from fire can happen wholly inde- 
 pendent of natural causes. Fire will not burn without air, and 
 yet no one will assert that, because this natural agency enters into 
 every conflagration, therefore the wrong-doer is absolved from 
 responsibility. It is very seldom that any case arises in which 
 some break between cause and effect is not discernible upon rigid 
 scrutiny and by captious refinement, but the law is a practical sci- 
 ence and repudiates subtle refinements and speculative inquiries. 
 It will not sacrifice substantial rights to such impracticable proc- 
 esses, but will reject them to make way for practical justice. Re- 
 condite discussion of efficient cause, plurality of causes and kindred 
 topics is not for the practical lawyer or judge.^ In the ably 
 
 ^McKeller v. Monitor I'wp. 78 Mich. 485. 
 
 ^Louiismlle, If. A. <fc C. E. Co. v. NiiscJie (Ind. Dec. 9, 1890) 9 L. R. A. 
 750. 
 
 ^ Scott V. Shepherd, 2 W. Bl. 892; Billman v. IndvmapoUs, C. & L. R. Go. 
 76 Ind. 166; Dunlap v. Wagner, 85 Ind. 529, 44 Am. Rep. 42; Terre Hnute 
 & I. R. Co. V. Buck, 96 Ind. 346, 49 Am. Rep. 186; L'misviUe, N. A. & G. 
 R. Co. V. Faicey, 104 Ind. 409. 1 West. Rep. 868; Indianap'dut. P. cfc a. R, 
 Go. V. Pitzer, 109 Ind. 179-188, 7 West. Rep. 396; Ohio & M. R. Co. v. 
 Hecht, 115 Ind. 443, and cases cited; Louisville, N. A. & G. R. Go. v. 
 Snider, 117 Ind. 435, 3 L. R. A. 434; Denver & R. Q. R. Co. v. ILirris, 
 122 U. S. 597, 30 L ed. 1146; Lake Shore & M. S. R. Co. v. Rosenzweii/, 118 
 Pa. 519, 4 Cent. Rep. 712. 
 
 ^Louisville, N. A. <& C. R. Co. v. MtscJie (Ind. Dec. 9, 1890) 9 L. R. A. 750. 
 42
 
 65 S IMPOSED DUTIES, PERSONAL. [Part III. 
 
 reasoned opinion pronounced in the case of MilwauTcee c& St. P. 
 B. Co. V. Kellogg, 94 U. S. 469, 24 L. ed. 256, the Supreme Court 
 of the United States unanimously declared that "in a succession 
 of dependent events an interval may always be seen by an acute 
 mind between a cause and an effect, though it may be so imper- 
 ceptible as to be overlooked by a common mind. Thus, if a build- 
 ing be set on fire by negligence, and an adjoining building be de- 
 stroyed without any negligence of the occupants, no one would 
 doubt that the destruction of the second was due to the negligence 
 that caused the burning of the first; yet, in truth, in a very legiti- 
 mate sense, the immediate cause of the burning of the second was 
 the burning of the first. Such refinements are too minute for 
 rules of social conduct. In the nature of things, there is in every 
 transaction a succession of events more or less dependent upon 
 those preceding; and it is the province of a jury to look at this 
 succession of events and ascertain whether they are naturally and 
 probably connected with each other by a continuous sequence, or 
 are dissevered by new and independent agencies, and this must be 
 determined in view of the circumstances existing at the time." 
 Discussing the same general principle in another case, that tribu- 
 nal said: " In the sense of an efficient cause, causa GOMsans, this is 
 no doubt strictly true; but that is not the sense in which the law 
 uses the term in this connection. The question is, "Was it causa 
 sine qua non, a cause which, if it had not existed, the injury would 
 not have taken place ? And this is a question of fact, unless the 
 causal connection is evidently not proximate.'" In the case of 
 JEtna Ins. Co. v, Boo7i, 95 U. S. 117, 24 L. ed. 395, the court 
 said : "The question is not. What cause was nearest in time oi 
 place to the catastrophe ? That is not the meaning of the maxim 
 causa proxima, non retnota, spectaturP In the same case the 
 court quoted with approval from the case of Brady v. North- 
 western Ins. Co., 11 Mich. 425, the following statement of the 
 law : "That which is the actual cause of the loss, whether operat- 
 ing directly or by putting intervening agencies, the operation of 
 which could not be reasonably avoided, in motion, by which the 
 loss is produced, is the cause to which the loss must be attrib- 
 uted." 
 
 ^Hayes v. Michigan Cent. R. Co. Ill U. S. 228, 28 L. ed. 410.
 
 Cliap. XXX.] DUTY IMPOSED UPON A PERSON USING FIRE. C59 
 
 III almost ev^ery branch of the law may be found cases, ancient 
 and modern, asserting the general doctrine outlined in these de- 
 cisions.' 
 
 For further examination of this question of proximate cause, 
 see ante^ pp. 649-G54. 
 
 h. Fire Result of One of Tiuo Causes. 
 
 If the tire result from one of two causes, and it cannot be de- 
 termined from which, the defendant is not liable unless he is an- 
 swerable for each cause. Thus, where a railroad is only liable if 
 fire escaped from a defective ash-pan, and not if it escaped from 
 a properly constructed smoke-stack, proof must be made of the 
 former causing the injury to establish liability.* If one on 
 whose premises the lire spread may have caused the loss to a third 
 party by negligent failure to extinguish it, or if another has ex- 
 tended it, the original author of the fire is not liable.' 
 
 Where by statute one who starts a prairie fire is liable for all 
 damages caused thereby, irrespective of the degree of diligence 
 used to keep it under control, one who claims exemption from this 
 rule, as having started the fire to escape an advancing fire which 
 threatened to destroy his property, must present the issue by an- 
 swer; and if the two fires really came together before the plaintiff's 
 property was reached, so that thereafter there was but one fire and 
 that fire burned the property, then the question for the jury is, 
 Did the fire set by defendant have such effect as to cause the 
 burning of the plaintiff's property? Or, in other words, would 
 plaintiff's property have been burned by the other fire, if that set 
 by defendant had not united with it? It is of little importance 
 which was the larger fire when the two met. The effect of the 
 fire from that time on the property would not depend upon the rel- 
 ative size of the two fires when they came together, but on the fuel 
 that fed the flames and the bi'eeze that fanned them. The unit- 
 
 ^Omslaer v. Philadelphia Co. 31 Fed. Rep. 3'54; Lnncl-7. Tyngsboro, 11 Cush. 
 
 563; Louisiana Mat. Ins. Co. v. T<need, 74 U. S. 7 Wall. 44, 19 L. ed. 65; 
 
 Butler V. Wildman, 3 Barn. & Aid. 398; Barton v. Home Ins. Co. 42 Mo. 
 
 156; Marcy v. Merchants Mat. las. Co. 19 La. Ann. 388; Bing v. Cohoea, 
 
 77 N. T. 83; Ehrgott v. New York, 96 N. Y. 264. 
 *8earUs v. Manhattan E. R. Go. 101 N. Y. 666, 2 Cent. Rep. 443. 
 ^Doggett v. Richmond & D. R. Co. 78 N. C. 305.
 
 C60 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 ing of the fives, however, may have increased the extent, and the 
 question is one of fact for the jury whether in fact the defendant's 
 fire caused the destruction of the property, if the circumstances 
 justified him in starting tlie fire.* But where the defendant's 
 negligence causes injury, as, if he wrongfully started the fire, he 
 will not be permitted to say that the same injury would have hap- 
 pened from some other cause, if he had not been guilty of neg- 
 lect.' One negligent person cannot escape liability for his negli- 
 gence because the negligence of a third person concurred in pro- 
 ducing the injury.' 
 
 i- Statutory Provisions against the Kindling of 
 Fires under Certain Cireuriistances, and Re- 
 quiring Fire-Escapes to he Placed upon Build- 
 ings. 
 
 The Legislatures of the various States have attempted to limit 
 the loss of life and property, caused by fires, by enacting provis- 
 ions making it unlawful to kindle fires under certain circumstances. 
 Thus, in Florida it is declared unlawful to set fire to woods, with- 
 out giving notice to all persons living within a mile.^ Under 
 this, however, it cannot be shown that defendant failed to give 
 notice to a person other than plaintiff, who lived within a mile, 
 this being immaterial.^ In Wisconsin the board of supervisors of 
 any town may prohibit the l)urning of logs or brush when such 
 act M'ould cause public damage on account of a drought pre- 
 vailing.® 
 
 In Tennessee the burning of woods is forbidden,' and the act is 
 
 ^Thoburn v. Campbell, 80 Iowa, 338. 
 
 ^Nitro-])hosphate Co. v. Liverpool & St. K. Docks Co. L. R. 9 Ch. Div. 503, 
 where the injury caused by the defendant's embankment was increased 
 by the act of God. 
 
 *Louisville, N. A. & C. R. Co. v. Lucas, 119 Ind. 583, 6 L. R. A. 193; Pitts- 
 burgh, C. & St. L. R. Go. V. Spencer, 98 Iiid. 186; Slater \. Mersereau, 
 64 N. Y. 138; Birrettv. Third Ace. R. Co. 45 N. Y. 638; Garterville v. 
 Cook, 129 Hi. 152, 4 L. R. A. 731; Pastene v. Adams, 49 Cal. 87; DeCamp 
 V. Sioux City, 74 Iowa, 392. 
 
 4Pla. Laws, chap. 3141, §1. 
 
 ^Saussy v. South Fla. R. Co. 22 Fla. 327. 
 
 6 Wi.s. Laws 1887, chap. 343, p. 374. 
 
 'Mill. & V. Code Tenn. § 2277.
 
 Chap. XXX.] DrTY imposed upon a person using fire. OGl 
 
 declared a misdemeanor.' In Delaware the protection of timber 
 and other property is provided for," and also in Missouri,' but 
 no punishment is imposed where the fire was a misfortune not 
 foreseen or intended.* In New Jersey, township committees 
 are authorized to appoint persons to prevent tlie burninf^ of woods, 
 etc., and to ''ferret out and bring to punishment" persons causing 
 the same.* Provision is made in the Massachusetts Statute for 
 the investigation of the cause, origin and circumstances of every 
 tire occurring in cities and towns except Boston, in which property 
 has been destroyed, as to whether such fire "was tlie result of care- 
 lessness or design. ° 
 
 Provision is made in the different States for the escape of in- 
 mates from buildings in case of fire. In Virginia, owners of fac- 
 tories, work-shops, hotels, school buildings and hospitals over three 
 stories in height, theaters and other public places of amusement 
 are recpiired to erect fire-escapes of the most approved modern de- 
 sign.^ In New Jersey, all buildings in which twenty or more per- 
 sons live or congregate, or are employed, temporarily or otherwise, 
 above the first ground floor thereof, are required to have one or 
 more, as the proper authority shall direct, external wrought-iron 
 fire-escapes.* In Pennsylvania the A.cts of 1SS3 and 1885 to the 
 same effect were amended.'' 
 
 In New York, the owner of a factory building, who has received 
 rent for a series of years, cannot escape responsibility for injuries 
 suffered by an employe, where a tire broke out in the building, 
 four stories in height, which spread rapidly, shutting off the stair- 
 way, and, there being no fire-escapes, the employe leaped from the 
 third-story window to an adjoining roof and was injured, by al- 
 leging that he had no personal knowledge that fire-escapes had not 
 been erected as required by Laws of 1888, chap. 583, tit. 14, § 16, 
 
 'Tenn. Acts 1887, chap. 234, p. 395. 
 
 5 Del. Laws 1887, No. 93, p. 153. 
 3 Mo. Rev. Stat. §2129. 
 
 *Kalile V. Hobein, 30 Mo. A pp. 473. 
 f'N. J. Laws 1888, chap. 188, p. 345. 
 
 6 Mass. Acts 1889, chap. 451, p. 287. 
 
 ^Va. Pub. Acts 1889-1800, chap. 199, p. 151. 
 8 N. J. Laws 1890, chap. G3. 
 •Pa. Laws 1889, No. 189, p. 169.
 
 662 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 and Laws of 18S7, chap. 462, § 4. The initial duty rests upon the 
 owner of the building to call the attention of the commissioner 
 and seek his direction.' The absohite duty is imposed to provide 
 a fire-escape, and this duty is imposed for the benefit of the ten- 
 ants of the building, so that ihey can have a mode of escape in 
 case of a fire. For a breach of this duty it cannot be doubted that 
 the tenants have a remedy.* It is a general rule that when one who 
 owes another a duty, whether such duty is one assumed by volun- 
 tary contract or imposed by statute, a breach of such duty gives a 
 cause of action. Duty and right are correlative, and, the duty be- 
 ing imposed, the right to have it performed results to the person 
 interested. When a statute imposes a duty upon a public officer, 
 it is well settled that any person having a special interest in the 
 performance thereof may sue for a breach of the duty causing him 
 damage, and the same is true of a duty imposed by statute upon 
 anyone.' In Comyn's Digest, Action ^cyon Statute^ F, it is stated 
 as the rule that " in every case where a statute enacts or prohibits 
 a thing for the benefit of a person, he shall have a remedy upon 
 the same statute for the thing enacted for his advantage, or for 
 the recompense of a wrong done to him contrary to the said law." 
 In an action for the death of the wife of a tenant who occupied 
 the rear rooms of a house not provided with a fire-escape as re- 
 quired by law, and which was destroyed by fire causing such death, 
 and there was evidence that if there had been a fire-escape placed 
 at the rear of the house, no evidence being introduced as to their 
 usual position, the deceased could and probably would bave es- 
 caped, it was ruled that it might be assumed, from the structure of 
 the house and of fire-escapes, that one would probably have been 
 placed in the rear, and the jury were sustained in finding that the 
 deceased would have escaped if the defendant had performed his 
 duty in providing the escape. It was also decided that three days' 
 occupancy, without proof of notice of the want of fire-escapes, or 
 waiver of the duty to provide them, would not bar the action. 
 The tenant owed no duty to the landlord to examine to see if there 
 
 mcLauglilin v. Armfield (Sup. Ct. Feb. 1891) 34 N. Y. S. R. 886. 
 
 ^Willp V. Mulledy, 78 N. Y. 310. 
 
 mover V. Barkoff, 44 N. Y. 113; Jetter v. Neio York & E. R. Co. 2 Abb. 
 
 App. Dec. 458; Heeneyv. iSprague, 11 R. I. 456; Couch v. Steel, 3 El. & 
 
 Bl. 402; Willi/ v. Mulledi/, 78 N. Y. 310.
 
 Chap. XXX.] DUTY IMPOSED UPON A PERSON USING FIUE. 663 
 
 was such escape provided, but might assume that the statutory 
 duty had been performed. Nor would knowledge of the failure 
 of the landlord have defeated the action, as the tenant might re- 
 quire the landlord to perform the duty, or take a reasonable time 
 to secure other apartments.' 
 
 Any building more than forty feet high above the first story, 
 and built to contain six families or more, which has no practical 
 fire-escape in violation of the provisions of N. Y. Laws 1802, 
 chap. 356, § 27, is a nuisance.'' But a statute requiring the owner 
 or agent for the owner of any factory, work-shop, tenement house, 
 inn or public house more than two stories high, to provide a con- 
 venient exit from each story, does not impose such duty on the 
 owner, when he is not in possession or control thereof, and his 
 tenant in possession and control uses the building as a factory or 
 workshop. ° 
 
 ' Willy V. Mulledy, 78 N. Y. 310. 
 
 ^Fire Department v. Williamson, 16 Abb. Pr. 19;) 
 
 ^Lee V. Smith, 42 Ohio St. 458.
 
 CHAPTER XXXL 
 
 NEGLIGENCE CONTRIBUTING TO INJURY SUFFERED FROM 
 
 FIRE. 
 
 Sec. 90. Contributory Negligence of Party Injured by lire. 
 
 a. Not Bound to Anticipate Negligence. 
 
 b. Mitst not Create Peril nor Neglect Effort to Escape Loss. 
 
 c. Eight to Build on One's Oion Land. 
 
 d. Not Chargeable on Accoicnt of Changed Conditions. 
 
 e. No Recovery where Plaintiff Consents to Increase of Danger. 
 
 f. Special Acts and Conditions Present Questions for the Jury. 
 
 Section 90. — Contributory J^e^ligence of Party In- 
 jured hy Fire. 
 
 The lawful use of one's land cannot be held to be negligence, or 
 the proximate cause of injury by another. "The aggressor can 
 never say that it was the duty of the assailed to ward off the blow 
 unlawfully aimed at him.'" As no compensation has been allowed 
 land holders for the loss or hazard from negligently kindled or 
 controlled fires,'' it would invade constitutionally protected rights 
 to hold them outlawed for a legitimate use of their own property.* 
 
 ^Wilder v. Maine Cent. R. Co. 65 Me. 332; Benson y. Suarez, 28 How. Pr. 512; 
 Cressey v. Northern R. Co. 59 N. H. 564; Flynn v. San Francisco & S. J. 
 R. Co. 40 Cal. 14; Salmon v. JDelaioare, L. & W. R. Co. 38 N. J. L. 5; 
 DeUmare, L. & W. R. Co. v. Salmon, 39 N. J. L. 311; Snyder v. Pitts- 
 burgh, C. <& St. L. R. Co. 11 W. Va. 17; St. Joseph & D. G. R. Co. v. 
 Chnse, 11 Kan. 47; Fitch v. Pacific R. Co. 45 Mo. 323; Jefferis v. Phila- 
 delphia, W. & B. R. Co. 3 Houst. 448; Burke v. Louisville & N. R. Co. 
 7 Heisk. 452; Hart v. Western R. Corp. 13 Met. 99; Ingersollv. Stockbridge 
 & P. R. Co. 8 Allen, 43S; Martin v. Western U. R. Co. 23 Wis. 437; Pig- 
 gott V. Eastern Counties B. Co. 3 C. B. 228; Smith v. London & S. W. R. 
 Co. L. R. 5 C. P. 98; Hewey v. Nourse, 54 Me. 256; Field v. New York 
 Cent. R. Cb. 32N. Y. 339; Bacheldery. Heagan, 18 Me. 32; Bariiard v. 
 Pwr, 21 Pick. 378; Perfey V. Eastern B. Co. 98 Mass. 414; Hooksettv. 
 Concord R. Co. 38 N. H. 242; McCready v. South Carolina R. Co. 2 Strobh. 
 L. 356; Cleveland v. Grand Trunk R. Co. 42 Vt. 449; Alpern v. Churchill, 
 53 Mich. 614. 
 ^Sunbury & E. R. Co. v. Hummell, 27 Pa. 99; Lehigh Valley B. Co. v. Laza- 
 rus, 28 Pa. 203; Patten v. Northern Cent. B. Co. 33 Pa. 426. 
 
 ^Re Jacobs, 98 N. Y. 98; Baltimore <& P. R. Co. v. Fifth Baptist Church, 108 
 U. S. 317, 27 L. ed. 739; Butchers Union S. H. & L. S. L. Co. v. Crescent 
 City L. S. L. <& 8. H. Co. Ill U. S. 755, 28 L. ed. 590.
 
 Chap. XXXI.] CONTRIBUTORT NEGLIGENCE IN CASE OF FIRE. 605 
 
 A plaintiff cannot be guilty of negligence while in the lawful use 
 of his own property on his own premises;' as, wliere plaintiff's 
 property, on which were combustible materials, was destroyed by 
 lire communicated thereto by defendant's negligence," 
 
 Farmers may cultivate and use their premises in the usnal man- 
 ner and are not bound to resort to extraordinary precautions to 
 guard against a railroad company exposing them to damage from 
 tire.' Thus, it is not contributory negligence on the part of those 
 owning haystacks near a railroad, which are burned by fire spread- 
 ing from the right of wa}^, to fail to keep the grass burned off of 
 the lands between the stacks and the right of way.* Nor will his 
 neglect to employ the usual means of protection be held as con- 
 tributory negligence, where the land owner has reasonable ground 
 for supposing himself secure by reason of his peculiar surround- 
 ings or situation. Where a stream 30 feet wide runs between 
 property destroyed by a prairie fire and the place where the fire is 
 kindled, the failure of the owner of the property to apply fire 
 guards around it, in accordance with the custom of the country, is 
 not contributory negligence.* 
 
 a. Kot Bound to Anticipate J^egligence. 
 
 While the land owner must use reasonable care — which is care 
 in proportion to the danger to which he is exposed — while others 
 use the same care, he cannot be required to anticipate negligence 
 on the part of others." Nor will he be required to guard against 
 
 ^Fero V. Buffalo & S. L. E. Co. 22 N. Y. 215: Belloics v. Sackeit, 15 Barb. 
 102; Kellogg v. Chicar/o & N. W. B. Co. 26 Wis. 223; Cook v. Champlain 
 Transp. Co. 1 Denio, 96, 97, 102. 
 
 "^Flynn v. San Frnncuco & S. J. R. Co. 40 Cal. 14; Salmon v. Delaware R. Co. 
 38 N. J. L. 5, 39 N. J. L. 299; Erd v. Chicaqo & N. W. R. Co. 41 Wi.s. 
 65; Pittsburgh, C. & St. L. R. Co. v. Jones, 86 lad. 496; Snyder v. Pitts- 
 lurgh, C. & St. L. R. Co. 11 W. Va. 14. 
 
 ^Patton V. St. Louis & S. F. R. Co. 87 Mo. 117, 1 West. Rep. 760; Philadel- 
 phia & R. R. Co. V. Eendrickson, 80 Pa. 182. 
 
 ^Louisville, N. A. & C. R. Co. v. Hart, 119 Ind. 273, 4 L. R. A. 549; KnU)- 
 fleisch V. Long Island R. Co. 102 N. Y. 520, 3 Cent. Rep. 662; Phihulflphia 
 R. Co. V. Schrdtz, 93 Pa. 345. Contra, see Ohio & M. R. Co. v. Sham-fdt, 
 47 111. 497; Chicago & N. W. R. Co. v. Simoiison, 54 III. 504; Kesee v. Chi- 
 cago & iV. W. R. Co. 30 Iowa. 78. 
 
 ^Powers V. Craig, 22 Neb. 621. 
 
 ^Snyder v. Pittsburgh, C. (& St. L. R. Co. 11 W. Va. 14; Kalfjfleisch v. Long 
 Island R. Co. 102 N. Y. 520, 3 Cent. Rep. 662; Vaughan v. Taff Vak R. 
 Co. 3 Hurl. & N. 743.
 
 ^Q6 IMPOSED DUTIES, PERSONAL. [Part III. 
 
 ■dangers of which he has no special knowledge and which are with- 
 out his ordinary experience. "Where sparks from a steam thresher 
 set fire to hay stored on the premises of another, the owner of the 
 hay being engaged in plowing at the time in the same field, but 
 having made no protest against the use of the thresher, in an ac- 
 tion by him for the negligent destruction of the hay, it was held 
 that, in the absence of proof that he had any special knowledge of 
 the risk of using such machinery, or of the skill and competency 
 of those who had charge of it, he was entitled to an instruction 
 that if he did not consent to or participate in what was done, he 
 was not guilty of contributory negligence.' 
 
 b. Must not Create Peril nor Keglect Effort to 
 Escape Loss. 
 
 The occupier of land will not be permitted, however, to place 
 material liable to ignite in dangerous proximity to a railroad," 
 and in the event of fire he will be required to use reasonable ef- 
 fort to prevent loss, Ko recovery can be had for injury to plain- 
 tiff's property by fire coming from defendant railroad company's 
 engine, where plaintiff could have put out the fire, and failed to 
 make any effort to do so.' His failure to make the attempt is 
 not contributory negligence, where it would be impossible to sup- 
 press the fire or prevent the injury." Where material is so placed, 
 however, with the consent of the railroad and in its interest, the 
 fact will not be held as contributory negligence by the one so 
 placing it. Thus, where plaintiff placed cord-wood on the right 
 of way of a railroad under an agreement with the company so to 
 do, and the wood was destroyed by fire communicated by a pass- 
 ing locomotive, he was held not to have contributed to the injury.' 
 
 ^Mooney v. Peak, 57 Mich. 259. See also Slosson v. Burlington, C. R. & N. B. Go. 
 
 51 Iowa. 294; Kesee v. Chicago & N. W. B. Co. 30 Iowa, 78; Burlington & 
 
 M. B. B. Co. V. Westover, 4 Neb. 268. 
 '^Murpliy V. Chicago & N. 'W. B. Co. 45 Wis. 222; Niskern v. Chicago, M. & 
 
 St. P. B. Co. 22 Fed. Rep. 811 ; Macon & W. B. Co. v. McConnell, 27 Ga. 481. 
 '^Tilley v. St. Louifi & S. F. R. Co. 49 Ark. 535; Illinois Cent. B. Co. v. Mc- 
 Clelland, 42 111. 355; St. Louis, I. M. & S. B. Go. v. Hecht, 38 Ark. 357; 
 
 Chicaqo & A. B. Co. v. Pennell, 94 111. 448; Doggett v. Bichmond & D. B. 
 
 Co. 78 N. C. 305; Snyder v. Pittsburgh, C. & St. L. B. Co. 11 W. Va. 15. 
 *Tilley v. St. Louis & S. F. B. Go. 49 Ark. 535; McNarrav. Chicago & N. W. 
 
 B. Co. 41 Wis. 69. 
 ^Pittsburgh, C. & St. L. B. Co. v. Nelson, 51 Ind. 150.
 
 •Oliap. XXXI.] CONTRIBUTORY NEGLIGENCE IN CASE OF FIRE. 6G7 
 
 c. Right to Bitild on One's Own Land. 
 
 The rule that the concurrence of the plaintifi's negligence with 
 that of the defendant will defeat the claim to reparation is modi- 
 fied where the plaintiff, knowing the danger, voluntarily places 
 his property in an exposed and hazardous position, or in more than 
 ordinary danger from the lawful acts of the defendant. This 
 principle was illustrated in the case of Cook v. ChamjylO/in 
 Transp. Co., 1 Denio, 91, where it was held that, if a person in the 
 lawful use of his own property exposes it to the danger of acci- 
 dental injury from the lawful acts of others, he does not thereby 
 lose his remedy for an injury caused by the culpable negligence 
 of such other persons; so that the owner of land on the shore of 
 a stream or lake or adjoining the track of a railroad may lawfully 
 l)uild on his land, though the situation be one of exposure and 
 liazard, and be nevertheless entitled to protection against the neg- 
 ligent acts of persons lawfully passing the same with vessels or 
 -carriages propelled by steam engines by which said buildings may 
 be set on tire, on the ground that the owner undertook the risk 
 and hazard of injury by mere accident, but not the risk of injury 
 by negligence.* 
 
 The rule that a plaintiff cannot recover damages, if he contrib- 
 uted by his own negligence to the injury, does not apply to a case 
 where the plaintiff had constructed a building of wood and of 
 ■combustible materials such as are generally used in such a building, 
 upon his own lands, though it be within five feet of a dock upon 
 a public navigable river where steamboats are in the habit of land- 
 ing/ 
 
 d. JVot Chargeable on Account of Changed Con- 
 ditions. 
 
 One will not be guilty of contributory negligence for failure to 
 remove buildings not in peril at the time of their erection, be- 
 •cause the location of new buildings or changed situation has ren- 
 
 'See VnvgJian v. Tuff Vale R. Co. 5 Hurl. & N. 678; Grand Trtmk R Co. 
 
 V. Birhardson. 91 U. S. 454, 23 L. ed. 3o6: Caswell v. Chicago £ N. W. R. 
 
 Co. 42 Wis. i9S\ Jefferis V. P/dladelphia, W. & B. B. Co. 3 Houst. 447; 
 
 Burke Y. Louisville & N. B. Co. 7 Heisk. 451. 
 ^Kiaq V. American Transp. Co. 1 Flipp. 1. See also Alpern v. Churchill, 53 
 
 Mich. 607; Hill v. Ontario, S. d H. B. Co. 13 U. C. Q. B. 503.
 
 668 IMPOSED DUTIES, PERSONAL. [Part IIL 
 
 dered them liable to danger from lire. While a person who 
 erects his buildings at or near a railroad track is presumed to 
 know the damages incident to the use of steam as a motive power,, 
 and assumes some of the hazards to which his property is exposed,' 
 yet, where a party erects his buildings at a reasonably safe distance 
 from the railroad track, he cannot be held gnilty of negligence 
 because his building was situated so as to be liable to be set on 
 fire by another subsequently erected in dangerous proximity to- 
 the track.* ' 
 
 e. J\^o Recovery ivhere Plaintiff Consents to In- 
 crease of Danger. 
 
 But the owner cannot recover where he consents to the placing 
 of dangerous substances or materials on his land which imperil 
 his property. Thus, the fact that telegraph and telephone poles- 
 and wires prevented the extinguishment of afire does not make 
 the company owning them liable for the loss, where the owner of 
 the building burned, on whose land they stood, had built by the 
 side of them, and had permitted a tenant to use one of the wires, 
 and had never objected to them in any way before the fire.' Nor 
 where he knowingly avails himself of machinery in a dangerous 
 condition can he claim freedom from the charge of contributory 
 negligence.'' 
 
 f- Special Acts and Conditions Present Questions 
 for the Jury. 
 
 Where a locomotive was standing at rest near an unfinished 
 building then in process of erection and in the hands of the build- 
 ers, whether leaving a door partly open through which sparks from 
 the engine flew — a strong wind blowing towards the house — was 
 culpable negligence on part of the owner or his servants is a ques- 
 tion which may properly be referred to the jury as one of fact." 
 An open window through which sparks communicated was held. 
 
 ^Toledo, W. & W. R. Co. v, Larmon, 67 111. 68. 
 
 ^ToMm, W. & W. E. Go. V. Maxfield, 73 111. 95. 
 
 ^Chaffee v. Tehphone tfc Teleg. Constr. Go. 77 Mich. 635, 6 L. R. A. 455. 
 
 ^Marquette, H. & 0. R. Go. v. Spear, 44 Mich. 169. 
 
 ^Fero V. Buffalo & S. L. R. Go. 23 N. Y. 209.
 
 Chap. XXXI.] CONTRIBUTORY NEGLIGENCE IN CASE OF FIRE. C69 
 
 not to defeat an action for negligence.' Permitting the roof of a 
 building to get into such a condition that it would ignite from sparks 
 did not render the owner chargeable with negligence.* 
 
 Where a railroad company alleged, as a defense to a suit for 
 having destroyed plaintiff's house by fire, communicated by one 
 of defendant's locomotives, that plaintiff was guilty of contribu- 
 tory negligence in leaving his premises exposed to such danger, 
 the jury might properly consider the fact that the house was up- 
 wards of forty feet from the right of way, and upon a high stone 
 foundation, and the probabilities as to danger, if defendant's en- 
 gines were operated with reasonable care.^ Such questions are 
 properly for the jury." 
 
 ^Loiiisville, N. A. & C. R. Co. v. Richarchon, 66 Ind. 43, 32 Am. Rep. 94. 
 ^PUladelpliia & R. R. Co. v. Hendrickaon, 80 Pa. 183, 21 Am. Rep. 97; Jef- 
 
 eris V. Philadelphia, W. & B. E. Co. 3 Houst. 447. 
 ^Niclwls V. Chicago, St. P. M. & 0. R. Co. 36 Minn. 452. 
 ^Collins V. New York Cent. & H. R. R. Co. 5 Hun, 499, affirmed, 71 N. Y. 
 609; Kansas City, F. 8. & G. R. Co. v. Owen, 25 Kan. 420; Birgew. Gardi- 
 ner, 19 Conn. 507; Missouri Pac. R. Co. v. Kincaid, 29 Kan. 654; Kansas 
 Pac. R. Go. V. Brady, 17 Kan. 3S0; Garrett v. Chicago & N. W. R. Co. 36 
 Iowa, 121; Ross v. Boston & W. R. Co. 6 Allen, 87; Tanner v. Neto York 
 Gent. R. Co. 108 N. Y. 623, 11 Cent. Rep. 82; Fero v. Buffalo & S. L. R. 
 Go. 22 N. Y. 209; Huyett v. Philadelphia & R. R. Co. 28 Pa. 373; Chicago 
 & N. W. R. Co. V. Simonson, 54 111. 504; Erie R. Co. v. Decker, 78 Pa. 
 295.
 
 II^DEX. 
 
 ABANDONED WATERS. 
 
 ouce held navigable, 523 
 
 ABANDONMENT. 
 
 of prescriptive right to fish, 499 
 
 of easement by encroachment, 576 
 
 question of fact and intention, 576 
 
 ABATEMENT. 
 
 of public nuisance, right to, 40, 75 
 
 request for, 64-56 
 
 Individual right to abate nuisance, 75, 469 
 
 of nuisance by destruction of property, 533 
 
 ABSOLUTE RIGHTS. See Natural Rights. 
 
 ACCESS. 
 
 to water; right of riparian owner, 359 
 
 to tide-waters. 381 
 
 to river; liability for cutting off by diversion of channel, 432 
 
 to right of way; effect of closing, 577 
 
 ACCIDENT. 
 
 inevitable, liability for, 106, 546 
 
 as creating presumption of negligence, 133, 147 
 
 injury by, in constructing, elevating or repairing party-wall, 231 
 liability for injury by animals, 604, G07 
 
 as to escape of fire, 645 
 
 ACCRETION. 
 
 what is; right to, 393 
 
 right to remove and restore flow of water, 461 
 
 left by water receding, 394 
 
 ACCUMULATIONS. See Accretion. 
 
 ACCUSTOMED COURSE OF STREAM. 
 
 what is, 4(50 
 
 ACID. 
 
 offense of putting in waters where fish are, 540 
 
 ACQUIESCENCE. 
 
 in use of real property by others, 25 
 
 in party-wall, 205
 
 672 INDEX. 
 
 ACT. 
 
 of third person, liability for, 104, 149, 368 
 
 as intervening cause, 635 
 
 on one's own premises, liability for, 436, 439 
 
 ACT OF CONGRESS. 
 
 effect on pending suit or prior decree, 465 
 
 ACT OF GOD. 
 
 liability for injuries caused by, 106 
 
 extraordinary floods or accidents, 431 
 overflow caused by unprecedented storm, S33, 435 
 
 suspending easement, 575 
 
 ACTION. 
 
 for nuisance 41, 70, 78, 434 
 
 to abate a nuisance in highway, by whom brought, 76 
 
 private right of, for obstructing watercourse, 471 
 
 cause of, for breach of statutory duty, 662 
 
 efl'ect of Act of Congress pending suit, 465 
 
 ACTION ON CASE. 
 
 for flowing land, 434 
 
 for nuisance, 434 
 
 ADDITIONAL SERVITUDE. 
 
 by railroad in street, 86 
 
 by telegraph poles on railroad, 97 
 
 ADMIRALTY. 
 
 rule of contributory negligence in, 368 
 
 division of damages in, 369 
 
 what navigable waters within, 370 
 
 tidal streams, 373 
 
 non-tidal navigable rivers, " 375 
 
 ADMISSION. 
 
 in deed reserving water-right, 459 
 
 as to negligence in care of animals, 608 
 
 of State; effect on ownership of tide lands, 380 
 
 ADVERSE HOLDING. 
 
 by removal of obstructions from stream under license, 462 
 
 ADVERSE USE. See also Prescription. 
 
 of water ou public lands, 446 
 
 ADVERSE USER. 
 
 to extinguish easement, 579 
 
 AFFIRMATIVE EASEMENT. 
 
 what is, 158
 
 INDEX. 673 
 
 AGENT. 
 
 notice to principal by knowledge of, 625 
 
 AGGRAVATION. 
 
 matters of, in pleading, 459 
 
 AGISTER. 
 
 liability of, 622 
 
 AGRICULTURAL PURPOSES. 
 
 rigbt to use water from stream for, 410, 411 
 
 right to use running water for, 441 
 
 AXEL. 
 
 limitation of writs of. 177 
 
 AIR. 
 
 easement of, 180 
 
 from street, easement of abutting owner, 84 
 
 liability for polluting, 270 
 
 shooting bird in, from highway, 528 
 
 ALKALI WORKS. 
 
 as a nuisance, 151 
 ALLEY. 
 
 right to obstruct, 244 
 
 right to erect building over, 245 
 
 easement in: effect of destruction of buildings, 576 
 
 effect on easement of building over, 577 
 
 ALLUVION. 
 
 what is; right to, 396 
 
 imperceptible addition of; test of, 401 
 
 ALMSHOUSE. 
 
 use of farm of for profit, 345 
 
 AMUSEMENT. 
 
 place of, requirement of fire-escapes upon, 661 
 
 ANCHOR. 
 
 right to, for fishing, 514 
 
 of vessel; injury to fishery by, 538 
 
 right to, at wharf, 568 
 
 ANCIENT LIGHTS. 
 
 doctrine of, where recognized, 179 
 
 A.NGLING. See also Fisheries. 
 
 from boat in navigable streams, 529 
 
 ANIMALS. 
 
 what word includes, 638 
 
 classification of; ferce naturm, domiUje naturas, 586 
 
 43
 
 674 * INDEX. 
 
 cruelty to, 637 
 
 wild; ownership of; right to tal<e, 526 
 
 prohibiting the killing of, in certain seasons, 641 
 
 killing in highway, 529 
 
 ownership of brood, 586 
 
 liability for unruly horse killing traveler, 144 
 
 ferocious, liability for keeping, 16 
 
 ferw naturce, in place of public resort, liability for, 629 
 
 contributory negligence in case of injuries by, 630 
 
 duty imposed upon owners of, 585 
 
 keeping on owner's land, 585 
 
 trespass by, 587 
 
 duty to fence in, 589 
 
 statutes requiring owner to fence against, 592 
 
 habit of animals, 605 
 knowledge of dangerous character, 587, 593, 604, 610, 615, 619 
 
 knowledge of servant, 610,624 
 
 authority to allow running at large, 598 
 
 driving off trespassing animals, , 599 
 
 impounding; right of, 60O 
 
 authority to impound and sell, 601 
 
 of rights of owner of impounded animals, 602 
 
 municipal ordinances regarding strays, 602 
 
 damages for trespass by impounded animals, 603 
 
 liability of owners of; trespass by, 604 
 
 care of domestic animals under special circumstances, 607 
 
 confinement, when sufHcient, 609 
 
 horses loose or exposed in public place, 610 
 
 diseased, duties of owners of; warranty of soundness, 63S 
 
 ANNEX. 
 
 to factory; right to use water for, 482^ 
 
 ANNOYANCE. See Nuisance. 
 
 ANTICIPATION OF NEGLIGENCE. 
 
 not required, 665 
 
 APERTURE. 
 
 in sidewalk, 108 
 
 APIARY. 
 
 as a nuisance, 588 
 
 APPARENT EASEMENTS. 
 
 not lost by merger, 573 
 
 APPENDANT. 
 
 easement, 165 
 
 APPRAISERS. 
 
 of damages for trespass, 603
 
 INDEX. • G75 
 
 APPROPRIATION 
 
 for purpose of easement, 264 
 
 exclusive, of banks of navigable watercourses, 387 
 
 of water; priority of, 444 
 
 APPURTENANCES. 
 
 what included in, 169 
 
 passing by operation of law, 162 
 
 appurtenant easement, 159 
 
 in stairway, 165 
 
 transfer of easement as, 418 
 
 to mill site, 419 
 
 contract for water-right as appurtenant to land, 450 
 right to draw water from stream as appurtcuaut to land conveyed, 458 
 
 of fishery, 498 
 
 reservation of, 560 
 appurtenant highway between high and low water mark, 74, 383 
 
 AQUA CURRIT ET DEBET CURRERE UT SOLEBAT. 
 
 409,544 
 AQUEDUCT. 
 
 prescriptive right to maintain, 426 
 
 AQUEDUCT BOARD. 
 
 suit by to restrain public nuisance, 453, 468 
 
 AREA. 
 
 unguarded as a nuisance, 72 
 
 fall of watchman into, 122 
 
 ARMS OF THE SEA. 
 
 ownership of, 380 
 
 ARREST. 
 
 for violation of Fish Laws, 535 
 
 without warrant, 536 
 
 when deemed made, 536 
 
 ARTHUR KILL. 
 
 power of Congress to authorize bridge over, 466 
 
 ARTIFICIAL CHANNEL. 
 
 right to dam up, 455 
 
 ARTIFICIAL EMBANKMENTS. 
 
 causing percolation; liability for, 430 
 
 ARTIFICIAL MEANS. 
 
 increase of volume of water in stream by, 552 
 
 ARTIFICIAL OYSTER BED. 
 
 what is, 537
 
 676 INDEX. 
 
 ASIATIC CHOLERA. 
 
 tearing down buildings to prevent spread of, 648 
 
 ASSIGNMENT. 
 
 of license, not allowed, 185 
 
 ASSIGNOR. 
 
 duty to keep wharf safe, 567 
 
 ASSIGNS. 
 
 word not necessary in agreement regarding party-wall, 239 
 
 ASSIZE. 
 
 as remedy for nuisance, 434 
 
 ASSUMPSIT. 
 
 implied for contribution, 226 
 
 ASTORIA. 
 
 title of land between high and low water mark, 388 
 
 ATTORNEY-GENERAL. 
 
 information by, to prevent diversion of water, 458 
 
 to restrain public nuisance, 468 
 
 AUTHORITY. 
 
 of Legislature, limit of, exceeding, 34, 35 
 
 for obstruction of stream, 389 
 
 of statute as a defense for injury from busioess, 154 
 
 to impound animals; delegation of, 601 
 
 to build bridge, 434, 464 
 
 BACK FIRE. 
 
 proximate cause of injury resulting from, 651 
 
 BACKING. 
 
 of water; liability for, 435 
 
 caused by dam or obstructions; liability for, 432 
 
 BAILEE. 
 
 liability for animals in possession of , " 622 
 
 gratuitous; liability of, 490 
 
 BAILIFF. 
 
 water; suit by for penalty, 536 
 
 BAKED LANDS. 
 
 caused by flooding, 433 
 
 BALLOON. 
 
 liability of occupant for attracting crowd into garden, 144
 
 INDEX. 077 
 
 BANKS. For riparian rights generally see also Waters. 
 
 right to land upon, 359, 360 
 
 of navigable watercourses; appropriation of, 387 
 
 of navigable waters; control of municipal corporations over, 393 
 
 title of land conveyed along water front, 393 
 
 BARB.WIRE FENCE. 
 
 liability for injuries by, 597 
 
 BARGES. 
 
 liability for loss of by striking against pier, 387 
 
 right of owner to build storehouse for, outside levees, 39 1 
 
 BARN. 
 
 destruction of; effect on right of way, 576 
 
 BARREL. 
 
 fall from window upon traveler as presumptive negligence, 156 
 
 BARRIER. 
 
 duty to make, around excavation in or near highway, 116 
 
 necessity of, along dangerous places in highway, 314 
 against surface water, 258, 303 
 against waters of the sea or rivers; right to erect, 300, 435 
 
 to keep off overflow water from river, 435 
 
 right to erect to protect land from sea or stream, 461 
 
 effect of, on navigability of stream, 403 
 
 BARS. 
 
 to way, 176 
 
 as islands, 383 
 
 BASEMENT. 
 
 of hotel, making adjoining wine cellar too warm; injunction against, 153 
 
 BASHI CREEK. 
 
 navigability of, 406 
 
 BATTURE. 
 
 what is, 39 1 
 
 use of as landing and wharf, 391 
 
 decision as to what part of soall be used for commerce, 390 
 
 BAY. 
 
 land-locked, private ownership of; rights of fishing in, 512 
 
 use of waters for hunting, 507 
 
 state control of fisheries in, 495 
 
 BEACH. 
 
 meaning of, 378 
 
 toll of fish for drawing boats upon, 497
 
 €78 INDEX. 
 
 BEAM. 
 
 ou bridge over trench, liability for itijury caused by, 21 
 
 BEASTS. See ANiMAxa. 
 
 BED. 
 
 in sleeping-car, breaking down of, 155 
 
 of stream, ownership of, 357 
 
 of tidal stream, ownership of, 375 
 
 not included in deed, 385 
 
 of salt water, ownership of, 580 
 
 BEES. 
 
 ferm naturm; ownership of. 587 
 
 liability for injuries done by, 587 
 
 as a nuisance, 588 
 
 swarm of; right to take, 587 
 
 BIRDS. 
 
 shooting in air from highway, 5S8 
 
 killing in highway, 529 
 
 prohibiting the killing of in certain seasons, 541 
 
 BLACKBIRD CREEK. 
 
 jurisdiction over, 378 
 
 BLACKSMITH SHOP. 
 
 use of water for, 571 
 
 BLIND MAN. 
 
 injury by falling into hatchway through mistake in opening door, 135 
 
 BLINDNESS. 
 
 partial, of warranted horse, 63;5 
 
 BOAR. 
 
 knowledge of character of, 606 
 
 BOARD OF CONSERVATORS. 
 
 suit by, for penalty, 636 
 
 BOARD-SAW. 
 
 right to put into shingle-mill for which water is granted, 483 
 
 BOAT-HOUSE. 
 
 as part of wharf, 559 
 
 right of action by owner for interference with flow of water, 561 
 
 BOATING. 
 
 for recreation, customary right, 188 
 
 on private stream; obstruction by posts and chains, 8.57 
 
 on small private lakes; right of; enjoyment in common, 581
 
 ESTDEX. 679 
 
 BOATS. 
 
 hindering passage of by filling up Oats, 381 
 
 damage to by defective draw-bridge; right of action for, 472 
 
 right of action of owner for obstrucliou to lake, 473 
 
 wharf boat as part of wharf, 467 
 
 scuttbng as proximate cause, 656 
 
 BOG. 
 
 right to draw water from, 257 
 
 BOILER. 
 
 liability for explosion of, 153 
 
 BONA FIDE PURCHASER. 
 
 right of as to suspended easement, 578 
 
 BOOM COMPANIES. 
 
 duties and liabilities of, 556 
 
 compensation for driving logs, 557 
 
 BOULDER. 
 
 under water at wharf; liability for, 566 
 
 BOUNDARY. 
 
 starting point at middle of party-wall, 208 
 
 by fixed monument which has width, 394 
 
 of land on rivers, 394 
 
 by meandered stream, 395 
 
 on navigable rivers, 387 
 
 on navigable stream above tide-water in Kentucky, 388 
 on unnavigable portion of navigable river between island and mainland, 388 
 
 on sea shore. 393 
 
 BOX. 
 
 in main ditch for passage of water, 450 
 BOY. See Children. 
 
 BRAKEMAN. 
 
 injury to, by telegraph wire, 140 
 
 BREAKWATER. 
 
 constructed under Act of Congress, 380 
 
 land reclaimed by ownership of, 563 
 
 BREWING. 
 
 right to use running water for, 441 
 
 BRICK. 
 
 shaken out of defective bridge abutment; liability for injury by, 1 56 
 
 BRIDGE. 
 
 across street for private use as a nuisance, 264 
 
 over trench; liability for injury to passer by loose beam, 1 2
 
 680 INDEX. 
 
 breaking under steam boiler, 656 
 
 liability for injury in repairing, 659 
 
 destruction of by storm as presumption of negligence, 16& 
 
 destruction of resulting from continued rains, 431 
 
 joint expense of towns, 464 
 
 of railroad; improper construction of, 256 
 
 causing overflow of lands; prescriptive right, 489' 
 
 authority to build; liability for want of care, 484 
 
 right of owner of land on both sides of stream to build, 461$ 
 
 for public or general use; right of private owner to build, 468 
 
 over navigable streams; power to authorize, 464 
 
 as nuisance, 260, 463, 478 
 
 continuation of as new nuisance, 478 
 
 extending beyond bank, 464 
 
 protest of State against, 465 
 
 legalized pending suit by Act of Congress, 465' 
 
 withdrawal of license to build, 466 
 
 failure to build as prescribed by law, 467 
 
 necessity of changing piers, 467 
 
 right to break through, 470 
 
 as obstruction to lake; right of action of boat owner, 478 
 
 injury to by floatage of logs, 558 
 
 BROOD. 
 
 of domestic animals; ownership of; usufructary, ownership of brood, 586 
 
 BROOK. See also Waters. 
 
 towing on, as evidence of navigability, 405 
 
 is a public highway, when, 405 
 
 BRUSH. 
 
 prohibiting burning of during drought, 660 
 
 BUILDINGS. 
 
 liability for falling snow and ice from roof, 8, 47, 105 
 
 duty to keep in safe condition, :^_ 9 
 
 shutting off prospect or breeze by, 9 
 
 duty to make secure, 103 
 
 fall of, from defective construction, 51 
 
 as cause of fire, 652 
 
 rendered insecure by stranger, 104 
 
 adjacent, repairs to, 105 
 
 burning of, by permitting water to reach lime therein, 156 
 
 in dangerous condition, liability for leaving standing, 156 
 
 reserving rights in on sale, 160 
 
 one part tributary to other, easements in, 164 
 
 right of support from adjoining premises, 190 
 
 right to erect over alley, 245 
 placing materials for, in highway, 99, 249, 250
 
 INDEX. C81 
 
 decay of, effect on easement for access to, 575 
 
 destruction of; effect on right to alley or right of way, 576 
 
 to prevent spread of fire, 647 
 
 of cholera, 648 
 
 to abate nuisance, 648 
 
 by fire, 649-660 
 
 right to build on one's own land, 667 
 
 risk of fire, 667 
 
 exposure of building to fire, 667 
 
 hazard of fire to building, 667 
 
 consent to increase of danger, 668 
 
 BULKHEAD. 
 
 right to erect to protect land from sea or stream, 461 
 
 BULL. 
 
 knowledge of dangerous character of, 606 
 
 liability for leading through street, 608 
 
 BURDEN OF PROOF. 
 
 as to injury from use of adjoining premises, 151 
 
 of negligence, as to fires, 648 
 
 in case of injury to servant, 1 33 
 
 BURNING GOOSE. 
 
 as cruelty, 639 
 
 BUSINESS. 
 
 lawful, as nuisance, 11, 14, 151, 152 
 
 of boat owner; injury to by bridge, 473 
 
 CALF. 
 
 injury to by sow and pigs, 593 
 
 CALIFORNIA. 
 
 law of as to appropriation of water, 448 
 
 CANAL. 
 
 liability of company for inundating lands, 15 
 
 damage for overflowing lands in building, , 270 
 
 as navigable water, 370 
 
 CANAL COMPANY. 
 
 right to appropriate waters of stream, 443 
 
 CAR. 
 
 liability for injury by to boy who unfastens brakes, 584 
 
 CARE. See also Negligence. 
 
 ordinary, what is, 3 1 
 
 amount required where act if unauthorized would be a nuisance, 34
 
 682 INDEX. 
 
 to prevent damages; necessity of, 435 
 
 degree of necessary in confining water, 438 
 
 required of owners of machinery to prevent injury to others, 583 
 
 in respect to risk of fire, 642 
 
 CARRIAGES. 
 
 right to use running water to wash, 441 
 
 CARRIER. 
 
 liability for breaking of rail by frost, 137 
 
 drowning of passenger, liability of vessel for, 138 
 
 liability for injury to passenger by accident, 139 
 
 presumption as to defective appliances from injury to passenger, 155 
 
 by ferry; liability of 488 
 
 division of damages for injury to freight, 369 
 
 duty to feed and water stock, 639 
 
 CASE. 
 
 action on for flowing land, 434 
 
 for nuisance, 434 
 
 CATCH BASINS. 
 
 in highway; percolation of water from, 350 
 
 CATTLE. See also Animals. 
 
 right to water from running brook, 442 
 
 of owner of dominant estate; duty to keep from right of way, 245 
 
 duy to prevent from trampling in ditch of another, 257 
 
 duty of owner to keep on his own land, 585 
 
 duty to fence against, 592 
 
 authority to run at large, 596 
 
 driving off trespassing cattle, 599 
 
 impounding and selling, 600 
 
 rights of owner of impounded animals, ' 602 
 
 municipal ordinances regarding strays, . 602 
 
 damage for trespass by animals impounded, 603 
 
 dishorning as cruelty, 636 
 
 duty of carrier to, 639 
 
 needless confinement and cruelty, 639 
 
 CAUSA PROXIMA NON REMOTA SPECTATUR. 658 
 
 CAUSE. 
 
 may create presumption of negligence. 147 
 
 proximate; rule as to, 363 
 See further Proximate Cause. 
 
 CAUSEWAY. 
 
 across stream; liability for repair, 436 
 
 CELLARS. 
 
 damage from water leaking out of pond, 430
 
 INDEX. 
 
 683 
 
 CESSANTE RATIONE CESSAT IPSA LEX. 286 
 
 CESSPOOL. 
 
 public; failure to keep in repair, 293 
 
 CHANGED CONDITIONS. 
 
 as affecting risk of fire, 667 
 
 -CHANNEL. 
 
 natural, what is, 355 
 
 of floatable stream; right to change or deepen, 413 
 
 inadequate; liability for consequent overflow, 435 
 
 filling up by sewage, 562 
 
 CHARGES. 
 
 for wharfage, 568 
 
 of boom companies, 556 
 
 for driving logs, 557 
 
 CHATTEL. 
 
 law of easements does not apply to, 159 
 
 CHESAPEAKE BAY. 
 
 right of private owner to recover for use by United States of land un- 
 der water for light-house, 380 
 
 CHILDREN. 
 
 attracted from public street, duty toward, • 26 
 injured by dangerous machines or apparatus, 29, 584 
 
 injury by dangerous platform near highway, 32 
 
 by dangerous machinery, 3 1 
 
 liability for death of, in unguarded vault near sidewalk, 122 
 
 death by rolling of water pipe from pile, 137 
 
 injury to by horse on street, 613 
 
 CHIMNEY. 
 
 fall of stone coping from, 149 
 
 fall of, caused by wire attached without owner's consent, 149 
 
 CHOLERA. 
 
 tearing down buildings to prevent spread of, 648 
 
 CHUNKS OF LAND. 
 
 caused by overflow, 433 
 
 CITIES. See also Municipal Corporations. 
 
 yielding of rights by inhabitants, 259 
 
 use of waters to supply, 45 1 
 
 CITIZENS. 
 
 discretion in favor of as to fishing privileges, 492
 
 684 
 
 INDEX. 
 
 CLAMS. 
 
 right to take from flats, 6Sff 
 
 right to dredge for, 687 
 
 CLASSIFICATION. 
 
 of animals, SSS- 
 
 CLEARING. 
 
 setting fires for, 644 
 
 CLOD. 
 
 caused by overflow of lands, 433- 
 
 CLOTHES. 
 
 right to hang in another's yard, 159 
 
 CLUBS. 
 
 cf sportsmen, attempt to acquire exclusive rights, 515- 
 
 COACH. 
 
 breaking down or upsetting as raising presumption of negligence, 155,156 
 right to stop in street for passengers, 248 
 
 remaining for unreasonable time in public street, 849 
 
 COAL. 
 
 falling from tender of locomotive, injury to track walker by, 13T 
 
 refusal to permit discharge upon wharf, 564^ 
 
 COAL BOATS. 
 
 authority of owner to build storehouse for outside levees, 39 1 
 
 COAL HOLE. 
 
 in sidewalk, defectively covered; liability for injury by, 48, 110- 
 
 liability of landlord for leaving unguarded, 52 
 
 in case of premises acquired subject to lease, liability for, 59- 
 
 unsecured covering to as a nuisance, 73- 
 
 COAL MINES. 
 
 precautions of master against danger, 13T 
 
 COAL PIT. 
 
 liability for fire communicated from, 644 
 
 COFFERDAM. 
 
 in outlet of lake; causing flooding of farm, 308- 
 
 COG-WHEEL. 
 
 unguarded, injury to child by, 29' 
 
 COLD. 
 
 as unsoundness of horse, 635- 
 
 COLLISION. 
 
 liability for injury caused by, 144 
 
 division of damages in case of, 369
 
 INDEX. 685 
 
 COLONIES. 
 
 law of concerning fire, 64 1 
 
 COLORADO. 
 
 right as to appropriation of water in, 447 
 
 COLT. 
 
 killed by horse in street, 608 
 
 COLUMBIA RIVER. 
 
 donation land claim upon, 560 
 
 COMMERCE. 
 
 power to regulate includes power to build light-house, 380 
 
 obstructions of navigable rivers in aid of, not nuisance, 463 
 
 COMMISSIONERS. 
 
 authority of to let cattle run at large, 598 
 
 COMMON. 
 
 right of by reservation of right to cut timber and of grazing, 579 
 
 liability and care for animals on, 593 
 
 rights in fisheries, 498 
 
 COMMON LAW. 
 
 adaptation of, 549 
 
 COMMON CARRIER. See Carrier. 
 
 COMPACT. 
 
 between Virginia and Maryland, 561 
 
 provision as to wharves, 561 
 
 COMPARATIVE NEGLIGENCE. 
 
 rule in Illinois and Georgia, 631 
 
 COMPENSATION FOR TAKING PROPERTY. See also 
 Eminent Dojiaes'. 
 constitutional provision, 435 
 
 CONCEDITUR ET ID SINE QUO RES IPSA HABERI 
 
 NON DEBIT. 418 
 
 CONDITIONS. 
 
 change of as affecting risk of fire to buildings, 667 
 
 CONDUIT. 
 
 with water pipes passing with grant of messuage, 418 
 
 CONFINEMENT. 
 
 of animals, what sufficient, 609 
 
 CONFLICT. 
 
 of rights in water; reconciling, 549
 
 6S6 INDEX. 
 
 CONFUSION. 
 
 of logs, 55ft 
 
 CONGRESS. 
 
 power as to lands below low-water mark in Stale, 8*79 
 
 authority of to build bridge, 46& 
 
 power to legalize bridge, 465 
 
 employing Secretary of War as agent, 465 
 
 CONSERVATORS. 
 
 suit for penalty by, 536 
 
 CONSTITUTIONAL LAW. 
 
 provision as to compensation for taking property, 435 
 
 as lo taking of water from stream without compensation, 452 
 
 as to compelling construction of fish-way past dam, 633^ 
 
 discretion in favor of state citizens as to fi.sheries, 493 
 
 validity of statute to protect game, 643- 
 
 CONTAGIOUS DISEASE. 
 
 of animals; duty of owners, 633 
 
 CONTINUANCE. 
 
 of nuisance, liability for, 470' 
 
 CONTRACT. 
 
 for driving of logs, not revocable, 557 
 
 CONTRACTORS. 
 
 attempt to transfer duty to, 37, 38, 39 
 
 CONTRIBUTION. 
 
 as to expense of party- wall, 215, 225 
 
 to maintenance of dam, flume and gate does not give right 
 
 to have water held back, 423 
 
 to maintenance of dam or reservoir, 547 
 
 CONVENIENCE. 
 
 as a basis for an easement, 163-172- 
 
 CONVEYANCE. 
 
 reference by, to plan, 161 
 
 COPING. 
 
 fall of, from chimney, 149 
 
 CORD-WOOD. 
 
 destruction of by fire set by locomotive, 666 
 
 CORN. 
 
 grant of, how made, 355
 
 INDEX. 
 
 GST 
 
 CORNICE. 
 
 projecting over street as a nuisance, 264 
 
 CORNS. 
 
 as unsoundness of horse, G35 
 
 CORPORATION. 
 
 distinction between entity and frauriiiscs, 87 
 
 authorized by Congress to bridge navigable waters, 466 
 compelled by State to maintain drawbridge as condition of recognition, 466 
 
 right of action for nuisance, 471 
 
 effect of ouster on fishery rights, 500 
 
 effect of grant to dredge for oysters, 500 
 
 duty to make fish-way past dam, 533 
 
 liability for animals kept by servant, 621 
 
 CORPOREAL HEREDITAMENT. 
 
 right to use of running water, 441 
 
 CORRUPTION OF WATER. See also Pollutio:^. 
 
 prescriptive right as to, 426 
 
 COSINAGE. 
 
 limitation of writs of, _ 177 
 
 COTTON, 
 
 proximate cause of loss by fire after delivery at carrier's sheds, 656 
 
 COUNTY COMMISSIONERS. 
 
 authority of to let cattle run at large, 598 
 
 COUPLING PIN. 
 
 injury by fall of, from car platform, 143 
 
 COURSE OF STREAM. 
 
 accustomed, what is, 460 
 
 COURTS. 
 
 federal; power to enjoin interference with obstructions to navigation, 468 
 
 COVENANT. 
 
 to repair as affecting liability for nuisance, 61 
 
 respecting party walls, 204, 219 
 
 personal, 219 
 
 as to cost, merely personal, 184, 220 
 
 as to water-right running with land, 450 
 
 to treat dividing line as fence, 596 
 
 COW. 
 
 injury to by sow and pigs, 593 
 
 negligence in driving through street, 608 
 
 CRABS. 
 
 lawful time for planting and gathering. 540
 
 688 INDEX. 
 
 CREATION. 
 
 of easement by deed, 180 
 
 CREEK. See also Waters. 
 
 pollution of, 8 
 
 prescriptive right as to changing channel, 426 
 
 CRIBBING. 
 
 as unsoundness of horse, 635 
 
 CROPS. 
 
 liability for destruction of caused by failure to keep wall along river 
 
 in repair, 461 
 
 duty to protect against defective cattle-guards, 632 
 
 CROSSING. 
 
 prescriptive right of way across railroad, 239 
 
 CROWD. 
 
 liability for attracting, 144 
 
 CRUELTY. 
 
 of Game Laws, 503 
 
 to animals, 637 
 
 CUJUS EST SOLUM EJUS EST USQUE AD COELUM. 354 
 
 CULVERTS. 
 
 liability of city for insufficiency of, 328 
 
 CURRENT. 
 
 not necessary to navigability or riparian rights, 402 
 
 CUSTOM. 
 
 to create easement, 188 
 
 not necessary to the public right to use floatable streams, 402 
 
 as to appropriation of water, 448 
 
 as affecting right of fishing in stream, 502 
 
 does not justify fishing in another's waters, 499 
 
 to establish right of inhabitants of locality to fishery, 500 
 as to exclusive right of riparian owner to use nets or other appliances 
 
 fastened to soil for fishing, 518 
 
 as to leaving gearing of mill uncovered, 584 
 
 to give right to make wharf , etc., 559 
 
 French, as to shooting and fishing in the Northwest, 525 
 
 CUSTOMER. 
 
 right to rely upon presumed security from danger, 150 
 
 DAM. 
 
 ownership of brood of, 586 
 
 DAMAGES. 
 
 duty to reduce to mimimum in changing party- wall, S15
 
 INDEX. G8*J 
 
 ability to shun as defense, 435 
 
 equal division of, in admiralty, 368 
 
 for injuring land not taken or abutting on land taken, 266 
 
 occasioned by highway, 267 
 
 to riparian owner for constructing road along shore, 359 
 
 for diversion of waters from stream, 451 
 
 nominal, for waters taken from stream for city, 451 
 
 for future unlawful diversion, 459 
 
 special or particular in case of nuisance; what is, 472 
 
 for continuance of improperly constructed bridge, 476 
 
 for partially destroying fish nets, 539 
 
 by each of several animals; presumption concerning, 594 
 
 for trespass by animals impounded, 603 
 
 for breach of warranty, 634 
 
 DAMNUM ABSQUE INJURIA. 
 
 72, 147, 196, 267, 280, 298, 305, 308, 382, 442, 463, 559 
 
 DAMS. 
 
 liability for continuing after conveyance of premises, 55 
 
 degree of care necessary in constructing, 43 1 
 
 sufficiency of liability for negligence, 439 
 
 damages for improper construction or maintenance of, 546 
 
 liability of builder when others are in possession, 434 
 
 damages for overflowing lands in making, 270 
 liability for escape of water from, 271, 272 
 
 injury to by upper mill owner, 545 
 
 decay of; title to soil left bare, . 398 
 
 substitutiug permanent structures for flash boards, 419 
 prescriptive right to, 262, 550 
 
 for what height, 262 
 
 right by prescription to use, 437 
 
 change of right to by prescription, 428 
 
 injunction to restrain, 438 
 
 to protect land from ill effects of other dam, 436 
 
 as obstruction to stream, 460 
 
 abatement of, as nuisance, 470 
 
 as both public and private nuisance, 478 
 
 in floatable stream, rights of owner, 413 
 
 compelling owner to maintain fish-ways, 532 
 
 duty of owner to make sluiceways for logs, 549 
 as a nuisance to floaters of logs, 415 551 
 
 sufficiency of sluiceways, 552 
 
 effect of artificial increase of volume of water, 552 
 
 across technically navigable stream, 418 
 
 proximate cause as to injury by tearing out, 650 
 
 contribution to maintenance of, 547 
 
 does not give right to have water held back, 423 
 44
 
 690 INDEX. 
 
 DANGER. See also Negligence. 
 
 from falling walls, 8S 
 
 hidden, failure to disclose, 150 
 
 DEATH. 
 
 caused by train, as creating presumption of negligence, 134 
 
 of wife of tenant for lack of fire-escape, 662 
 
 DEBRIS. 
 
 from quarry; liability for throwing in stream, 432 
 
 DECOYS. 
 
 right to anchor for wild-fowl, 504 
 
 right to fasten to soil for wild-fowl, 518 
 
 disturbance of, 505 
 
 willfully disturbing by shooting, 527 
 
 DECREE. 
 
 restraining diversion of waters; error in, 45& 
 
 DEDICATION. 
 
 of highway, effect of, 83 
 
 of strip of land for highway by sale of house fronting on, 184 
 
 of way; presumption of from user, 237 
 
 of right of fishery, 499 
 
 does not apply to public landings, 559 
 
 DEED. 
 
 of property including tidal stream; does not convey bed, 385 
 
 construction of, 5'72 
 
 DEER. 
 
 penalty for killing, 527 
 
 DELAWARE RIVER. 
 
 title of State to, in trust, 385 
 
 right to fisheries in, 514 
 
 DELEGATION. 
 
 of authority to impound animals, 601 
 
 DERELICTION. 
 
 what is; right to, S96 
 
 DESCRIPTION. 
 
 reference to plan as part of, 161 
 
 DESERT LAND ACT. 
 
 as to appropriation of waters on public lands, 444 
 
 DES MOINES RIVER. 
 
 repeal of Act of Congress declaring navigable, 386
 
 I^'DEX. 691 
 
 DESTRUCTION. 
 
 of party-wall, 216 
 
 of nets illegally used. 5?,3 
 
 of buildings, effect on alley or right of way, 576 
 
 to prevent spread of fire, 647 
 
 of cholera, , 648 
 
 to abate nuisance, 648 
 
 DETENTION. 
 
 of water, by mill-owner; reasonableness of, 545 
 
 in pond, for water supply, 257 
 
 DETERMINATION. 
 
 of rights as to diversion of water into ditches; how made, 450 
 
 DIMINUTION. 
 
 of watercourse caused by reasonable use, 442 
 
 DIP-NET. 
 
 prohibiting use of, 535 
 
 DISEASE. 
 
 of animals, 632 
 
 contagious; duty of owners, 632 
 
 warranty of soundness, 633 
 
 DISHORNING CATTLE. 
 
 as cruelty to animals, 637 
 
 DISTURBANCE. 
 
 of decoy, 505, 527 
 
 of rookery, 528 
 
 DITCH. 
 
 across farm; duty as to preventing cattle from trampling in, 257 
 
 change from irrigating ditch to mill-race, 263 
 
 open on highway; damage to property by, 322 
 
 in street; injuries from loosening soil, 333 
 
 liability of unincorporated town or village for, 351 
 
 right to discharge surface water through, 424 
 
 to empty sag holes into ravine, 424 
 
 change or obstruction of right to by prescription, 428 
 
 Nevada Act as to diversion of water by, 445 
 
 enlargement of under Colorado Statute, 448 
 
 increasing flow of water; effect of, on liability for overflow, 467 
 
 DIVERSION. 
 
 of water from steam; right to, 409, 440 
 
 by lower riparian owner; effect as to upper owner, 425 
 
 of waters to supply cities, 451 
 
 of flowing water; remedy for, 455
 
 692 INDEX. 
 
 DIVISION OF DAMAGES. 
 
 in admiralty, S68 
 
 DOCK. 
 
 as species of highway, 48 
 
 injurj' by stepping off gang plank, not guarded, 392 
 use by dockmaster of building on piles connected with dock by bridge, 392 
 
 establishment of line by Legislature, 561 
 
 liability of owner for defect in bottom of stream, 566 
 
 DOGS. 
 
 injuring sheep, 595 
 
 injury by; contributory negligence, 630 
 
 owner's knowledge of character of, 605 
 
 duties imposed upon owners of, 614 
 
 freedom of streets; liability for trespass on close, 614 
 
 damage by while trespassing, 615 
 
 vicious; liability of owner, 615 
 
 owner not insurer, 622 
 
 protection of property in; right to kill, 625 
 
 of other person; liability for injury by, 626 
 
 injury by several; liability for, 62*? 
 
 presumption as to amount of damage by each, 595 
 
 license or tax upon, 628 
 
 liability of harborer of, 621 
 
 DOMESTIC ANIMALS. See Animals. 
 
 DOMESTIC PURPOSES. 
 
 use of water from stream for, 410, 411 
 
 DONATION LAND CLAIM. 
 
 rights of owner as to shore, 560 
 
 DORMANT CLAIMS. 
 
 to easements; presumptions concerning. , 580 
 
 DRAG. 
 
 for oysters, etc. , prohibited, 537 
 
 DRAG SEINES. 
 
 prohibiting use of, 535 
 
 DRAGOON. 
 
 illegally billeting, . 14 
 
 DRAWBRIDGE. 
 
 compelling railroad to maintain, 466 
 
 DRAIN. 
 
 in streets, right to make, 98 
 
 liability for injury caused by, 124
 
 INDEX. 
 
 G93 
 
 prescription to acquire, 259 
 
 in and throiigli private way not to outlet beyonil, 259 
 
 liability for damage from escape of water, 270 
 
 percolation from gutters and catch basins in liighway, 350 
 
 under wbat circumstances city liable for damages from, 325 
 
 private, when does not become public sewer, 333 
 
 liability of unincorporated town for, 351 
 
 right to over lands of others, cut off by wharves, 381 
 
 right to discharge surface water through; to empty sag holes into 
 
 ravine, 424 
 
 abandonment or disuse of, 580 
 
 interruptions of use of easement, 581 
 
 obstruction of use of easement, 581 
 
 obstacle to use of easement, 581 
 
 DRAINAGE. 
 
 natural; right of land owner to disturb, 299 
 
 right of; effect of clause in deed, 572 
 
 DREDGE. 
 
 lor oysters, clams, etc., prohibited, 537 
 
 DRINKING TROUGHS. 
 
 in highway, as nuisance, 336 
 
 DRIVING LOGS. See Logs. 
 
 DROGUE. 
 
 right gained by striking fish with, 496 
 
 DROUGHT. 
 
 liability for starting fire in, 642 
 
 DROWNING LANDS. See Flooding. 
 
 DUCKS. 
 
 right to decoy and shoot, 504 
 
 wild, right to shoot, 514 
 
 DUTIES. See also Negligence. 
 
 attendant upon the possession of rights and ownership of property, 7 
 
 transferred; liability for failure to perform, 35 
 
 to keep premises safe, 18 
 
 to licensee, 25 
 
 of occupier of premises adjoining street, 26 
 
 to children attracted into danger, 26 
 
 as to conduct of business which would be a nuisance if unauthorized, 34 
 
 of owner of premises as to nuisance, 40-68 
 See also Nuisaijce. 
 
 DYE. 
 
 injury from, to purchaser of cloth, 136
 
 694 INDEX. 
 
 DYKES. See also Barriers. 
 
 to prevent towing ice cakes across premises, ' 885 
 
 EARTH. See Land. 
 
 EASEMENTS. 
 
 and servitudes defined, 157 
 
 tiatural, what are, 355 
 
 rights having semblance to, 356 
 
 how created, 159, 355 
 
 by express grant, 159 
 
 by implied grant, 163 
 
 by license; estoppel, 181 
 
 by prescription, 176 
 
 by custom, 188 
 
 for extension of house, 169 
 
 of light and air, 177 
 
 reciprocal, for lateral support, 190 
 
 as to use of highway, 35 
 
 private, in highway, S35 
 
 of lot owner in street, 81 
 
 extent of presumption; right limited by user, 238 
 
 negligence as affecting, 241 
 
 negligent failure to discover continuous or apparent easement, 241 
 
 negligence in the use or in interrupting the exercise of an easement, 243 
 
 in a way, 243 
 
 in light, 253 
 
 in water naturally or artificially flowing, 255 
 
 in harvesting ice, 260 
 
 identity of use, 262 
 
 appropriation for, 264 
 
 use to create prescription, 234 
 
 as limiting easement, 238 
 
 passing by implication, 241 
 
 purchaser ignorant of easement, 241 
 
 duty to discover, 241 
 
 rights of owner of soil, 258, 265 
 
 term "natural easement" applied to flowing water, 355 
 
 transfer of by grant of dominant estate, 418 
 
 in rivers, streams and ponds, acquired by grant; parol license, 418 
 
 limitation as to quantity of water granted, 422 
 
 in flowing water, acquired by prescription, 424 
 
 right to divert water from stream, 440 
 
 right to use of running water, 441 
 
 bow extinguished, 570 
 
 by release, 570 
 
 by merger in union of titles; natural, necessary and apparent not lost, 573 
 
 where usefulness ceases, 574
 
 INDEX. 695 
 
 exercise of right suspended by superior power, 575 
 
 renunciation or abandonment by encroachment, 576 
 
 abandonment a qucslion of fact and intention, 577 
 
 adverse user to extinguish, 579 
 
 extinguishment of prescriptive easement; admission, 581 
 
 EAST RIVER. 
 
 rights of owners of as to lands between high and low water mark, 385 
 
 ECZEMA. 
 
 damages for, 636 
 
 attempt to cure animal, 636 
 
 ELECTRIC CARS. 
 
 right to use of street, 94, 251 
 
 ELECTRIC COMPANY. 
 
 liability for explosion of insuflScient apparatus, 156 
 
 ELEVATOR. 
 
 unguarded; liability for injury to child, 29 
 
 opening near sidewalli; liability for leaving unguarded, 119 
 
 injury to passenger by fall of; liability for, 136 
 
 injury by fire from locomotive, 654 
 
 EMBANKMENT. 
 
 want of railing along; liability for injury, 47 
 
 artificial; causing percolation of water, 430 
 
 drowning lands of another; liability for, 430 
 
 to lieep off overflow water from river, 435 
 
 right to construct to protect laud from stream, 461 
 
 See also Barriees. 
 
 abatement of as nuisance to private owner, 469 
 
 EMINENT DOMAIN. 
 
 additional servitude, by railroad in street, 86 
 
 by telegraph poles on railroad, 97 
 
 damages for constructing road along shore, 359 
 
 appropriation of pier; compensation to owner, 386 
 
 compensation for taking water from stream, 452 
 
 diversion of stream; necessity of compensation, 452 
 
 diminution of stream; necessity of compensation for, 452 
 
 ENCROACHMENTS. 
 
 upon highways, 69 
 
 not legalized by lapse of time, 7 1 
 
 exception by statute, 7 1 
 
 by party-wall. 205 
 
 on easement; effect of, 576 
 
 "way held in common; effect of encroachment, 576
 
 696 
 
 INDEX. 
 
 ENGINE. 
 
 insufficient to avert consequences of accident, 137 
 
 ENTRANCES. 
 
 to building from street, duty to guard, 121 
 
 ENTRY. 
 
 limitation of writs of, 177 
 
 EQUITY. 
 
 aid to prevent diversion of water, 455 
 
 discretion of equity as to injunction, 456 
 
 jurisdiction over obstruction to flowing water, 47ft 
 
 EROSION. 
 
 loss of land by, 40O 
 
 ESCAPE. See Fire-Escape. 
 
 ESTOPPEL. 
 
 doctrine of, 183- 
 
 by silence or conduct, 183- 
 
 as to revocation of license, 181 
 
 by agreement to build party-Tvall, 211 
 
 by recital in agreement as to use of water, 459 
 
 EVIDENCE. 
 
 judicial notice of tides and navigability of waters, 375 
 
 presumption of negligence, from cause of injury, 133, 147 
 
 by permitting horse to escape, 612 
 
 presumption, of release or discharge of easement, 580 
 
 as to immemorial use of fishery, ' 499 
 
 of notice of dangerous character of bees, 587 
 
 of grant of way, " 237 
 
 as to machinery continuing safe, 146 
 
 as to continuance of unlawful diversion of water, 459 
 
 as to amount of damage done by each of several animals, 594 
 
 as to party-wall, 203 
 
 burden of proof, as to injury by use of adjoining premises, 151 
 
 of negligence, as to fires, 648 
 
 in case of injury to servant, 133 
 
 competency of witnesses as to quantity of water, - 434 
 
 as to right to use waters taken by another for irrigation, 449 
 
 as to diversion of water, 459 
 
 as to custom of leaving gearing of mill uncovered, 584 
 
 of scienter as to character of animals, 593 
 
 of knowledge as to sufiiciency of fence, 595 
 
 EXCAVATION. 
 
 liability for injury to person falling into, 26
 
 INDEX. GOT 
 
 by permission of city authorities, liability for failure to guard, 54 
 
 in highway, right to make, 109 
 
 liability for making, 109 
 
 when constitutes a nuisance, 109 
 in or near high wa}', liability for, 26, 116 
 
 care recjuired of traveler, 116 
 
 liability for injury to adjoining land by, 38 
 
 effect as to soil and buildings on adjacent premises, 190 
 
 used as ornamental fish or ice pond; offensive odor from, 430 
 
 of tunnel under island; responsibility for, 437 
 
 EXCEPTIONS. 
 
 by statute as to encroachments on highway's, 71 
 
 EXECUTORS. 
 
 liability for animals procured by tenant, 623 
 
 EXPERTS. 
 
 statutes requiring consent of in party-wall matters, 216 
 
 not needed as to danger of leaving gearing uncovered, 584 
 
 EXPLOSION. 
 
 of steam boiler, liability for, 153 
 
 of boiler as raising presumption of negligence, 155 
 
 of electric apparatus, liability for, 156 
 
 EXTENSION. 
 
 of house, easement for, ' 169 
 
 EXTINGUISHMENT. 
 
 of easement, • 570 
 
 EXTRAVAGANCE. 
 
 in exercise of exclusive right to use of water, 449 
 
 FACTORIES. 
 
 requirement of fire-escapes upon, 661 
 
 grant of water for; limit of use, 422 
 
 FALLOW. 
 
 setting fire to, 644 
 
 FARMERS. 
 
 competency to testify as to quantity of water, 434 
 
 FEDERAL COURT. 
 
 injunction to prevent interference with obstructions to navigation, 468 
 
 FEES. 
 
 for wharfage, 568
 
 '698 INDEX. 
 
 TEN. 
 
 region of England; fame of , 5S9 
 
 TENCE. 
 
 poles on outer edge of highway as nuisance, 10 
 more than six feel high, 10, 12, 13 
 
 common-law right to build high, 12 
 
 constitutional power to limit height, 12, 13 
 
 across highway, right to remove, 76 
 
 liability for fall of, 122 
 
 across land as obstruction of easement, S42 
 
 duty to keep along right of way, 845 
 
 right of person having right to flowage to interfere with, 258 
 
 effect of on right of common, 580 
 
 sufficiency of, 595 
 
 necessity of fencing ditch, 595 
 
 partition; agreement to dispense with, 596 
 
 must not be source of danger to cattle, 596 
 
 of barb-wire, 597 
 
 negligence in construction of, 597 
 
 right to enter adjoining land to restore, 648 
 
 FER^ NATUR-ffJ. 
 
 fish are, 503 
 
 what animals are, 58S 
 liability for keeping ammsils ferce nafurce in place of public resort, 629 
 
 FERRYBOAT. 
 
 liability for loss of wagon load, 138 
 
 FERRY. 
 
 franchise; right to maintain, 479 
 
 legislative authority, 479 
 
 right by prescription, 480 
 
 subordinate to navigation, 480 
 
 partition of, 480 
 
 grant of ferry license, 480 
 
 over river which is boundary, 481 
 
 unlicensed ferry unlawful; free skiff not unlawful, 481 
 
 a public highway, 481 
 
 termini of, 482 
 
 as appurtenant to land, •<'.82 
 
 injuries from defects in, 482 
 
 exists only in connection with highway or public place, 483 
 
 exclusive right of, 483 
 
 compensation for establishment of second ferry; revocation of license; 
 
 validity of order granting license; assignment of license, 485 
 
 forfeiture of ferry license, 487 
 
 nonuser of ferry franchise, 487
 
 INDEX. 090 
 
 PERRYMAN. 
 
 a comuiou carrier; liability, 488 
 
 FERTILIZER FACTORY. 
 
 as nuisance, 1 1 
 
 FILTRATION. See Percolation. 
 
 FIRE. 
 
 liability for spread of, 135 
 
 spontaneous burning of hay-rick, liability for, 151 
 
 burning of building by permitting water to reach lime therein, 156 
 
 destroying building; effect of on right to use alley, 576 
 
 duty imposed upon person using, 640 
 
 . Statute of 6 Anne, chap. 3, sec. 6, 640 
 
 care to be proportioned to risk, 042 
 
 duty to follow on other lands to extinguish, 646 
 
 willfully set, liability for, 645 
 
 destruction of building to prevent spread of, 647 
 
 burden of proof of negligence, 648 
 
 rulings in New York and Pennsylvania courts and elsewhere, 649 
 
 liability for fire indirectly extended, 654 
 intervening cause; independent wrongful act of responsible person; 
 
 natural consequences; proximate cause, 655 
 
 result of one of two causes, 659 
 statutory provisions against kindling under certain circumstances. 660 
 
 provision as to fire-escapes on buildings, 661 
 
 contributory negligence of party injured by, 664 
 
 not bound to anticipate negligence, 665 
 
 creating peril or neglecting eCort to escape loss, 666 
 
 effect of changed conditions on risk of buildings, 667 
 
 consent to increase of danger, 668 
 
 questions for jury, 668 
 proximate cause of loss by fire, 643-660 
 
 FIRE-ESCAPES. 
 
 provisions as to placing upon buildings, 660 
 
 FISH. 
 
 as part of realty; ownership, 354 
 
 belong to the whole people, 508 
 
 protection of; legislative regulations, 529 
 
 FISH COMMISSIONS. 
 
 establishment of, 54I 
 
 FISHERIES. 
 
 regulation of, not within admiralty jurisdiction; exclusive grant of 
 
 right to raise oysters, 379 
 
 fishing privileges a property right of state citizenship, 492
 
 700 INDEX. 
 
 right to fishing does not pass with grant of bed of river by town, 494 
 in Great Lakes; control of, 49& 
 usage as affecting rights in, 496 
 rights common to all or vested in individuals, 498- 
 right by prescription, 499 
 right to fish, in pond, 257, 499 
 in mere logging stream, 519 
 distinction between navigable rivers and mere logging streams as af- 
 fecting fishmg and hunting rights, 519 
 rights of owner of bed of stream, 382 
 right to the fish in drained reservoir, 500 
 carrying on business with machinery, 503 
 restrictions upon fishing rights, 503 
 regulation by statute, 529, 530 
 destruction of nets illegally used, 533 
 oyster fisheries, 536 
 injury to by negligent navigation, 538 
 protection and propagation of fish, 540 
 no right to draw nets upon shore, 499 
 privilege of, giving right of access and egress, 243 
 use of nets and appliances fastened to soil; esclusiveness of right, 517 
 
 FISH POND. 
 
 made in stone quarry, 540' 
 
 FISH WARDENS. 
 
 jurisdiction of, 535 
 
 FISH-WAYS. 
 
 compelling dam owner to maintain, 532- 
 
 FLASH BOARD. 
 
 on dam as showing prescriptive right, 582 
 
 FLAT BOATS. 
 
 power to float as test of navigability of stream, 406 
 
 FLATS. 
 
 meaning of, 378' 
 
 power to fill up, 381 
 right to have kept open, 381, 382 
 
 ownership of, 383 
 
 between high and low water mark; right to use, 384 
 
 prohibiting building upon, 390' 
 
 bordering on channel; boundary of, 395 
 
 right to take shell-fish upon, 536 
 
 FLOAT. 
 
 fastened to shore; liability for breaking away from fastenings, 39&
 
 INDEX. 
 
 701 
 
 FLOATABLE STREAMS. 
 
 what are; riiibts in, 402 
 
 navigability of, 3'^ 
 
 right to remove obstructions from, to improve navigation, 412 
 
 rights as to floatage of logs upon, S49 
 
 TLOATING COAL YARD. 
 
 duty of city to, 331 
 
 FLOODGATES. 
 
 of dam; refusal to open for passage of mud, 
 
 FLOODING. 
 
 of private property; liability of city for. 
 
 C46 
 
 325 
 
 as ouster of possession of land, 432 
 
 caused by bridge; liability for, 434 
 
 by insufficient dam or reservoir. 439 
 
 FLOODS. 
 
 title to soil washed away by, 400 
 
 necessity of providing for in making dam, 43 1 
 
 FLOW. See also Streams; Waters. 
 
 of water; right to restore by removing accretion, 401 
 
 FLOWAGE. 
 
 additional; provision for not inconsistent with grant of fee, 395 
 
 prescriptive right to, 426 
 
 FLUE. 
 
 in party- wall; ownership in, 806 
 
 FLUME. 
 
 easement in 571 
 
 right by prescription to use, 427 
 
 Nevada Act as to diversion of water by, • 445 
 
 FLUSH BOARDS. 
 
 changing height of; effect on claim of prescription, 262 
 
 occasional removal of, 868 
 
 FOOT WAY. 
 
 right to build over, 846 
 
 FOREST LAWS. 
 
 ancient arbitrary; remnant of, 526 
 
 not American, 608 
 
 FORFEITURE. 
 
 of oyster bed by violation of law, 636 
 
 FORGE. 
 
 as nuisance, 131
 
 T02 INDEX. 
 
 FOUNTAINS. 
 
 in highway as nuisance, 33& 
 
 FOWL. 
 
 profit d prendi'e, grant of to shoot wild-fowl, 181 
 
 FOWLING. See also Hunting. 
 
 freedom of, under Organic Law of Vermont, 510 
 
 FOXES. 
 
 cruelty to by hunting, 638 
 
 FRACTIONAL DIVISION. 
 
 lines of as boundary, 393 
 
 FRANCHISE. 
 
 right to operate street railway, 87 
 
 of ferry, 479 
 
 grant below high -water mark more than, 384 
 
 reservation of, 560 
 
 FRAUDS. 
 
 Statute of, in respect to agreement for use of party-wall, 230 
 
 FREEHOLD. 
 
 movable, of riparian proprietors, 40O 
 
 right to watercourse in nature of, 452 
 
 FREIGHT. 
 
 in car; destruction of by fire, 652 
 
 FRENCH CUSTOMS. 
 
 as to shooting and fishing in the Northwest, 525 
 
 FRESHETS. 
 
 necessity to provide for in making dam, 431 
 
 causing injury by ice, 433 
 
 FRESH WATER STREAMS. See Streams. 
 
 FRIGHT OF HORSE. 
 
 in highway, liability for injury caused by, 144 
 
 proximate cause of damages resulting from, 651 
 
 FRUIT. 
 
 upon trees; grant of, how made, 355 
 
 GALLERY. 
 
 fall of, liability of landlord, 53 
 
 GALLIPAGOS ISLANDS. 
 
 custom as to whale fisheries, 496
 
 INDEX. 703 
 
 GAME. 
 
 belongs to whole people, 508 
 
 risrht to kill upon navigable water, 508 
 
 killed on land of another; ownership nf, 516, 51^6 
 
 shooting from highway on private laud, 528 
 
 statutes for preservation of, 503, 541 
 
 GAME LAWS. 
 
 of England: cruelty of, 503 
 
 construction and application of, -528 
 
 GARDEN. 
 
 liability for attracting crowd into, 144 
 
 GAS. 
 
 right to lay pipes in streets, 98 
 
 corruption of water in soil by, 275 
 
 liability for admitting into building where it ignites, 642 
 
 GAS WORKS. 
 
 percolations polluting wells, private remedy for, 80 
 
 GATES. 
 
 on right of way; right to erect or remove,. 176, 245 
 
 in main ditch for passage of water, 450 
 
 GEARING. 
 
 liability for leaving uncovered, 584 
 
 custom as to leaving uncovered, 584 
 
 GEOLOGY. 
 
 is a progressive science, 286 
 
 GLANDERS. 
 
 as unsoundess of horse, 635 
 
 GOOSE. 
 
 cruelty by turpentining and burning, 639 
 
 GOVERNMENT. 
 
 title of to seashore and banks and beds of tidal streams, 377 
 
 GRAND POND. 
 
 regulation as to fishing in, 535 
 
 GRAND RIVER. 
 
 ownership of bed, 514 
 
 prohibiting nets in, 535 
 
 GRANT. 
 
 of franchise, construction of, 88 
 
 legislative, operation of statute, 561
 
 704 INDEX. 
 
 express, 159 
 
 implied, 163 
 implied in case of party-wall, 208, 223 
 
 of trees, corn, fruit, etc., how made, 355 
 
 bounded on navigable rivers; extent of, 387 
 
 rights necessary to enjoyment of, 418 
 
 of water-right; what passes as appurtenant to, 418 
 
 of water; limitation of quantity, 422 
 
 of exclusive fishery, 500 
 
 of right to create warren, 527 
 
 GRANTEE. See also Pojchaser. 
 
 liability on covenant as to water-right, 450 
 
 of water privileges; right to continue obstructions, 462 
 
 GRASS. 
 
 liability for setting fire to, G45 
 
 failure to keep burned near railroad, 665 
 
 GRAVEL. 
 
 below high-water mark; ownership of, 387 
 
 prohibiting the taking of from beach, 390 
 
 bar of in river bed; ownership of, 387 
 
 GREAT LAKES. 
 
 control of fisheries in, 495 
 
 navigability and freedom of, 511 
 
 GREAT PONDS. See also Ponds. 
 
 right to appropriate waters of, 454 
 
 protection of licensee's right to use waters of, 457 
 
 control of fisheries in, 495 
 
 Colonial Act as to fish and fowl of, 509 
 
 GREEN-HOUSE. 
 
 damage by freezing of water pipes; liability of city, 334 
 
 GREENLAND. 
 
 claim of usage in whale fishery, 497 
 
 GRIST-MILL. 
 
 use of water for; restriction of use, 422, 571 
 
 GROSS. 
 
 right of way in, 175, 176 
 
 GROUSE. 
 
 killing against rights of warren, 527 
 
 GUARDS. 
 
 against fire; neglect of, 665
 
 INDEX. 7U5 
 
 GULCH. 
 
 navigability of after being cleared and enlarged, 407 
 
 GUTTERS. See Dr^iiNS. 
 
 HACK DRIVER. 
 
 negligence of in standing by door of hack, 618 
 
 HALE. 
 
 Lord, treatise of, 620 
 
 HARBOR. 
 
 improvement by Act of Congress; right of United States in, 380 
 
 establishment of line by legislative authority, 561, 563 
 
 effect of on right of rijiarian owner, 379 
 
 HARBORER. 
 
 of dog; liability of, 621 
 
 HARLEM. 
 
 title of freeholders to waters of, 385 
 
 HARPOON. 
 
 striking whale with as affecting title, 497 
 
 HATCH COVERS. 
 
 presumptive negligence in handling without warning to persons be- 
 neath, 156 
 
 HATCHWAY. 
 
 failure to guard or give notice of, 22 
 
 fall of blind man into, 135 
 
 fall into, of gas fitter sent to building, 150 
 
 HAY. 
 
 growth of injured by freshets; liability for damage, 433 
 
 destruction of by fire set by steam thresher, 666 
 
 HAY RICK. 
 
 liability for injury from spontaneous burning, 151 
 
 HAY STACKS. 
 
 negligence in placing near railroad, 665 
 
 HEALTH. 
 
 injury by permitting water to stagnate, 304 
 
 authorities; liability for negligence, 335 
 
 HEDGE. 
 
 necessity of, 595 
 
 45
 
 706 INDEX. 
 
 HENNEPIN ISLAND. 
 
 injury caused by tunnel under, 436 
 
 HENS. 
 
 tendency of dog to kill, 626 
 
 HERBAGE. 
 
 riglit of owner of soil to, 258 
 
 HEREDITAMENT. See Incorporeal Hereditament. 
 
 HIDDEN DANGERS. 
 
 failure to disclose, 150 
 
 HIDE. 
 
 light to construct for shooting wildfowl, 504 
 
 HIGH-WATER MARK. 
 
 what is, 378 
 as boundary of private ownership, 380, 384 
 
 as boundary of seashore, 393 
 
 HIGHWAY. 
 
 designated upon plat but not accepted, 98 
 
 created by sale of house fronting on, 1 84 
 
 private easement in, 235 
 
 of lot owners, extent of, 81 
 
 private right of action for injury to, 78 
 
 discontinuance of portion as affecting right of way to, 244 
 
 use which would be a nuisance except for grant or prescription, 35 
 
 public nuisance on, 72 
 
 by railroad across street, 72 
 
 railroad grant of privilege in, 87 
 
 use of steam for motive power in, 72 
 
 electric motors for railways in, 94 
 
 laying of street railroad in, rights of abutting owners, 88, 89 
 
 ownership of fee of street, 91, 93 
 right of abutting owners to compensation for street railways in, 90-92 
 
 ordinary use by railroad, 72 
 
 teamsters making unlawful use of, 74 
 
 using for a hack stand, 74, 248 
 
 as place for keeping carriages or stable yard, 74, 249 
 
 attracting crowds in, 74 
 
 use by hucksters as a market place, 74 
 
 sale of goods in, 249 
 
 use for pleasure, 100 
 
 sliding in, 75 
 
 drains, electric, gas and water pipes in, 98 
 
 private sewerage in, 1 23 
 obstructions in, 247, 473
 
 INDEX. TOT 
 
 as nuisance, C9 
 
 remedy for, 76 
 private right of action for, 469, 471, 473 
 
 who entitled to recover for, 126 
 
 Legislative Act legalizing, 99 
 
 authority to permit, 99 
 
 reasonable use of, 71 
 
 placing materials in, 7 1 
 
 use for pleasure, 1 00 
 
 refusal to move at command of policeman, 248 
 
 by cars before residences, 74 
 
 by conveying goods to and from store, 248 
 
 use by wagoner for loading and unloading before "warehouse, 248 
 
 by hewing and sawing logs, 249 
 
 by building materials, 249, 250 
 
 temporary use for building purposes, 99, lOO 
 
 by skids across sidewalk, 251 
 
 by telegraph and telephone poles or wires, 95, 251 
 
 by throwing wood or stones into, 25 1 
 
 by electric or steam railway, 251 
 
 right of traveler to assume safety of, 114 
 
 excessive speed of travelers, 127 
 
 driving blind horse on dark night, 127 
 
 traveler's knowledge of danger, 128 
 
 violation of ordinance by driving on sidewalk, 130 
 
 right to go on adjacent lands, when impassable, 124 
 
 defects in, liability for, 68 
 
 omission of occupant to repair, 69 
 
 liability of town or city for, 339, 341 
 
 liability for accidents upon, 144, 145 
 
 duty of railroad company as to condition, 252 
 
 necessity of barriers along dangerous places, 116, 314 
 
 proximate cause of injuries in, 365, 368 
 
 encroaciiments upon, 69 
 
 authority to permit, 99 
 
 owner of propertj^ on street must not create nuisance, 102 
 
 insecure buildings adjoining highway, 103 
 
 falling of fence or limbs of trees in, 112 
 
 bridge across street for private use as nuis;ince, 264 
 
 projection of cornice over, 264 
 
 petition for damages for taking not substitute for action at law, 267 
 
 damages occasioned by, 267 
 
 for expense of wall to house, 267 
 
 effect of change of grade on surface waters, 305 
 
 damage to private property by open ditch, 322 
 
 percolation of water from gutters and catch basins in, 350 
 
 rights as to w^atercourses within; in repairing, 382
 
 708 INDEX 
 
 between high and low water mark, 74, 383 
 obstruction of as nuisance, 383 
 laying out in front of uplands; effect on riparian rights, 395 
 navigable stream declared public by statute, . 257 
 floatable stream as, 402 
 canal as navigable water, 370 
 killing birds or beasts in, 529 
 liability for cattle turned into, 594 
 removal of trespassing animals to, 599 
 leaving horse at large in, 607 
 leading bull or cow through, 608 
 leaving horse unhitched in, 611 
 negligence of hack-driver in, 612 
 annoyance to citizens in, by dogs, 627 
 walking fast and talking loud as contributory negligence in case of in- 
 jury by dog, 631 
 
 HOGS. 
 
 prohibited from running at large; trespass by, 599 
 
 liability for injuries by, while running at large, 603 
 
 HOLE. See CoAi.-HoLE; Excavation, 
 
 HOMESTEAD CLAIMANT. 
 
 rights in creek, subject to prior appropriation, 445 
 
 as against subsequent proprietor, 446 
 
 HORSE. 
 
 frightened in highway; injury caused by in highway, 144 
 
 proximate cause of injury by, 651 
 
 unruly, liability for killing traveler, 144 
 
 liability for injury to on ferry, 490 
 
 injury to by bees; liability for, 587 
 
 escaping from hired pasture, 594 
 
 damages to field by, 594 
 
 negligence in leaving at large, 607 
 
 permitting to go at large in public highway, 607 
 
 liability for killing colt, 608 
 
 care required of stallion, 609 
 
 leaving horse exposed in public place, 610 
 
 leaving unhitched in street, 611 
 
 cruelty by overburdening and misusing, 639 
 
 scalded by steam from breaking of bridge, 656 
 
 HORSE RAILWAYS. See Street Railways. 
 
 HOSPITALS. 
 
 requirement of fire-escapes upon, 661
 
 INDEX. 
 
 709 
 
 HOTEL. 
 
 defect in; liability of owner during lease, 51 
 
 kitchen of, making wine cellar too warm, injunction against, 153 
 
 requirement of "fire escapes upon, 661 
 
 HOUSE. 
 
 easement of extension, 169 
 
 materials of, how granted, 355 
 
 HUDSON RIVER. 
 
 title of State to in trust, 386 
 
 HUNDREDS. 
 
 liabilities of, 338.341 
 
 HUNTING. 
 
 privilege of, giving right of access and egress, 243 
 
 restrictions upon rights of, 503 
 
 distinction between navigable rivers and mere logging streams as af- 
 fecting rights of, 519 
 in park; liability for, 528 
 
 HUNTINGTON BAY. 
 
 title to waters of, 385 
 
 HUSBANDRY. 
 
 setting fires for purposes of, 645 
 
 ICE. 
 
 fall from roof, liability for, 8, 47, 105, 132 
 
 no proof of negligence necessary, 14 
 
 ownership of, belongs to soil, 516 
 
 within boundaries of railroad, right to, 158 
 
 right to cut and take from river, 260 
 
 on right of way belonging to owner of soil, 265 
 
 on floatable fresh-water stream; property in, 413 
 accumulated by imperfect construction of dam; liability for injury 
 
 caused by, 433 
 
 dykes to prevent towing cakes of across premises, 385 
 
 ICE POND. 
 
 made in stone quarry, 540 
 ICICLE. 
 
 frightening of horse by, 611 
 
 IDAHO. 
 
 law of as to appropriation of water, 448
 
 710 INDEX. 
 
 IDENTITY. 
 
 of use in prescription, 862 
 
 ILL FAME. 
 
 house of, indicating by light in front of, 15 
 
 IMPLIED ASSUMPSIT. See Assumpsit. 
 
 IMPOUNDING. 
 
 of domestic animals; right to, 600 
 
 INCIDENTAL DAMAGE. 
 
 liability for, 266, 267 
 
 INCHOATE GLANDERS. 
 
 as unsoundness of horse, 635 
 
 INCONVENIENCE. See Nuisance. 
 
 INCORPOREAL HEREDITAMENTS. 
 
 origin of, 178 
 
 presumption of title by enjoyment of, S36 
 
 grant below high-water mark more than, 384 
 
 in respect to wharf rights, 560 
 
 INDICTMENT. 
 
 for obstruction to flow of stream, 468 
 
 INEVITABLE ACCIDENT. 
 
 responsibility for, 546 
 
 INFORMATION. 
 
 by attorney-general to prevent diversion of water, 458 
 
 for obstruction to flow of stream, 468 
 
 INHABITANTS. 
 
 of town; right to private way, 235 
 
 INJUNCTION. 
 
 to restrain nuisance in streets, 76 
 
 to restrain street railroad, 87, 92 
 
 to restrain telegraph and telephone poles in streets, 95 
 
 against hotel kitchen making adjoining wine cellar too warm, 153 
 
 to restrain dam, 436 
 
 against dam for irrigating purposes, 446 
 
 to prevent pollution of water, 293. 
 
 against diversion of water, 455 
 
 for sale of use at a distance, 450 
 
 to restrain nuisance, 476 
 
 INJURY. See also Damages; Master; Negligence. 
 
 from unusual cause not in itself a nuisance, 138 
 
 from dye in cloth, 136
 
 INDEX. 
 
 711 
 
 by slipping on stairway, 
 
 to passenger by accident, 
 
 caused by frightened horse, 
 
 accidental or negligent in constructing, elevating or repairing 
 
 wall, 
 proximate cause of, 
 division of damages in case of, 
 to longshoremen, 
 to vessel, 
 
 to goods carried as freight, 
 to person, 
 
 to others as necessary effect of work on one's own land, 
 special or peculiar in case of nuisance; what is, 
 to children. See Children. 
 
 INLAND LAKES. 
 
 freedom of for fishing and fowling, 
 
 INSURANCE. 
 
 on canal boat; proximate cause of loss by fire, 
 
 INSURERS. 
 
 boom companies are not, 
 owner of dogs is not, 
 
 INTENT. 
 
 to cause injury, 
 
 not always necessary to create liability, 
 
 •when law will supply, 
 
 sometimes essential to be shown, 
 
 to violate law as to planting oysters, 
 
 as determining construction of deed, 
 
 to abandon easement, 
 
 INTERMINGLING. 
 
 of logs, 
 
 INTERVENING CAUSE. See Proximate Cattse. 
 
 139 
 138. 139 
 144 
 party- 
 
 231 
 365 
 369 
 369 
 369 
 369 
 370 
 436 
 472 
 
 513 
 
 656 
 
 557 
 622 
 
 11 
 
 14 
 
 14, 15 
 
 15 
 
 537 
 
 572 
 
 577 
 
 558 
 
 INTRUDER. 
 
 liability for injury, 
 
 duty toward; intent to injure, 
 
 INVITATION. 
 
 by failure to prohibit passage between houses, 
 to go upon dangerous premises, 
 
 IOWA. 
 
 rule as to ownership of navigable rivers, 
 
 IRRIGATION. 
 
 diverting water from stream for, 
 
 16.17 
 23 
 
 23 
 116 
 
 386 
 
 440
 
 712 INDEX. 
 
 appropriation of water for, in Pacific States, 444 
 
 right to appropriate water for on public lands, 44S 
 
 ISLAND. 
 
 title to, 38a 
 
 resulting from accretion; ownership of, 397 
 
 between two channels of river; title to accretion upon, 398 
 
 formed on submerged land, 400 
 
 injury caused by tunnel under, 436 
 
 JOINT DEBTORS. 
 
 liability for diversion of water jointly, 458 
 
 JOINT OWNER. 
 
 of animal; liability for injury by, 623 
 
 JUDGMENT. 
 
 defining waste water of stream, 450 
 
 restraining interference with dam; effect of as to prior appropriation 
 
 above, 451 
 
 JUDICIAL EXPERTS. 
 
 requiring consent of in party- wall matters, 216 
 
 JUDICIAL NOTICE. 
 
 of ebb and flow of tides and navigability of waters, STS 
 
 JURISDICTION. 
 
 prerogative right of, in regard to nuisance in rivers, 502 
 
 KENTUCKY. 
 
 rights of riparian proprietor on navigable stream in, 388 
 
 KNOWLEDGE. See Notice. 
 
 LACHES. 
 
 to defeat injunction against diversion of water, 458 
 
 LAKE. 
 
 as distinguished from stream, 358 
 
 title to shore, 8 ''8 
 
 as boundary, 393 
 
 private; ownership of, • 408 
 
 right of riparian proprietor to use water of, 411
 
 INDEX. 713 
 
 right of action of boat owner for obstruction to, 473 
 
 control of fisheries in Great Lakes, 495 
 
 right of fishing in, 495 
 
 partition of, 521 
 
 right to lower outlet and draw down, 547 
 
 LAKE CHAMPLAIN. 
 
 prohibiting net fishing in, 535 
 
 LAMENESS. 
 
 as unsoundness of horse, 635 
 
 LAMP. 
 
 suspended on public highwaj', duty to keep in safe condition, 38 
 
 LAND. 
 
 right to support by adjoining land, 37 
 
 what included in ownership of, 354 
 
 LANDINGS. 
 
 right to make, 358,559 
 
 when not a wharf, 390 
 
 dut/of ferrymen to make safe, 488 
 
 dedication does not apply to, 559 
 
 public and private, 502 
 
 LANDLORD. 
 
 liability for unguarded cellar-way of leased premises, 4 1 
 
 liabihty for nuisance on leased premises, 44 
 
 effect of redemise, 46 
 
 liability for lack of railing along unsafe embankment, 47 
 liability for defectively covered coal-hole, 48, 52 
 
 liability for dangerous defect in pier, 48 
 
 liability for defective wharf, 48 
 
 liability for fall of rented building, 51 
 
 duty to keep sidewalk safe, 52 
 
 liability for fall of gallery in leased building, 53 
 right to enter as affecting liability for nuisance, , 58 
 
 necessity of notice to, 58 
 
 liability for nuisance occuring during term of lease, 61 
 liability for defective covering of aperture in sidewalk, 48, 53, 111, 112 
 
 liability for dangerous premises in good repair when leased, 113 
 
 liability for lack of fire-escapes on building, 663 
 
 LANDOWNER. 
 
 limit of right, to use land, 7 
 
 to cultivate, 
 
 LANE. 
 
 grant of use of, 242 
 
 obstruction by fence, 342
 
 714 INDEX. 
 
 LARCENY. 
 
 of animal killed on land of another, 625 
 
 liATERAL SUPPORT. 
 
 right to, 37 
 
 does not extend to buildings, 38 
 
 reciprocal easement of, 190 
 
 LAWFUL ACT. 
 
 on one's own premises; liability for, 436, 439 
 
 LEASES. See also Landlord; Tenant. 
 
 right to flow lands as grant of easement, 421 
 
 LEDGE. 
 
 of rock; right to remove so as to affect flow of stream, 462 
 
 LEGISLATIVE GRANT. 
 
 state statute operating as, 561 
 
 LEGISLATURE. 
 
 authority, limit of, exceeding, 34, 35 
 
 authority of, to build bridge, 463 
 
 to obstruct stream, 389 
 
 power to regulate rights of fishing, 495 
 
 regulation by, of sporting and fishing, 629 
 
 LESSEE. See Tenant. 
 
 LEVEES. 
 
 right to build in Iowa below high-water mark, 386 
 
 right of City of New Orleans to build, 387 
 
 right of State to build or compel riparian owners to maintain, 391 
 
 libality for injury for diversion of water caused by, 435 
 
 to protect bank from overflow, 435 
 
 liability for overflow caused by, 467 
 
 LEX REI SIT^. 
 
 as to servitudes and easements, 263 
 
 LIBEL. 
 
 for destroying seine. 
 
 640 
 
 LIBERTY POLE. 
 
 liability for injury by fall of, 142 
 
 LICENSE. 
 
 condition on which granted, 109 
 
 by parol, 201,421,500 
 when revocable. 181, 201, 385, 421 
 
 of right to shoot wild-fowl, 181 
 
 to use pathway, 181
 
 INDEX. 715 
 
 to use foot-path implied from upo, 236 
 
 to establish right of way, 238 
 
 executed, as creating easement, 182 
 
 proof of , to defeat easement, 263 
 
 to use party-wall, 202 
 
 to build out wharf; irrevocable; when executed, 385 
 
 to use waters of great pond, 418 
 
 by parol, for use of river, stream or pond, 421 
 
 to establish mill and flow lands; right to revoke, 421 
 
 to build bridge, withdrawn, 466 
 
 alteration of bridge by Congress, 466 
 
 by parol, to fish, 500 
 
 license or tax upon dogs, 628 
 
 XICENSEE. 
 
 duty toward, as to premises, 20, 25 
 
 liability for injury to by dangerous machinery, 584 
 
 liabilitv for injury to, 150 
 liability of for permitting water to reach stored lime and burn building, 156 
 
 from State; protection of right to use waters of great pond, 457 
 
 LICENSOR. 
 
 right of to abate nuisance, 470 
 
 LIGHT. 
 
 from street; easement of abutting owner, 84, 180 
 
 negligence as aflltecting easement of, 253 
 
 effect on easement of by filling windows, 579 
 
 LIGHT-HOUSE. 
 
 liability of United States to pay rent for land used for, o80 
 
 LIGHTNING. 
 
 liability for injuries caused by, 106 
 
 LIME. 
 
 liability for permitting water to reach and burn building, 156 
 
 offense of putting in waters where fish are, 540 
 
 LIMITATION. 
 
 of easement by prescription, 176 
 
 of actions for damages by erection of mill dam, 426 
 
 LITTORAL RIGHTS. 
 
 what are, 358 
 
 LIVERY STABLE. 
 
 as nuisance, 131 
 
 LOBSTERS. 
 
 lawful time for planting and gathering, 540
 
 •16 
 
 INDEX. 
 
 LOCOMOTIVE. 
 
 running over common path ■without warnini^, 20 
 
 right to divert waters of stream for, 457 
 liability for tires set by sparks from, 643, 646 
 
 destruction of cord- wood by sparks from, 666 
 
 destruction of hay stack by sparks from, 66& 
 
 LOGGING STREAMS. 
 
 as distinguished from navigable rivers in respect to hunting and fish- 
 ing rights, 519- 
 
 LOGS. 
 
 power to float as test of navigability, 406- 
 
 liability for incumbering mill-pond with, 413 
 right to raft and float in streams, 413, 549 
 
 duty of owner of dam to make passage for, 550^ 
 
 sufficiency of sluiceways, 551 
 
 boom companies; duties and liabilities of, 556 
 
 compensation for driving, 557 
 
 intermingling and confusion of, 558 
 
 prohibiting burning of during drought GBO 
 
 LOG-WAY. 
 
 right to construct on bank of river, * 556- 
 
 LONGSHOREMAN. 
 
 injury by falling on deck; division of damages, SBS- 
 
 equal division of damages to, in admiralty, 368 
 
 LOSS. See also Damages. 
 
 division of in case of admiralty, 868- 
 
 neglecting effort to escape, 666- 
 
 LOW- WATER MARK. 
 
 what is, 378- 
 as boundary of private ownership, 879, 384 
 
 LUMBER. 
 
 rafts of as test of navigability of stream, 406- 
 
 MACHINERY. 
 
 defective; liability for injury to person who enters without invitation, 24 
 
 unguarded; liability for injury to child by, . 29- 
 
 care required of owners of, 583 
 
 presumption as to continuing safe, 146 
 
 use of in dangerous condition as negligence, 668 
 
 vibration caused by, as a nuisance, 168 
 
 class of, as test of quantity of water to be taken, 421$
 
 INDEX. 71 ( 
 
 MACKEREL. 
 
 shoal of iu place with small opening; right to, 499 
 
 MAGAZINE. 
 
 of powder: liability for explosion of, 650 
 
 MALEVOLENCE. See Iktent. 
 
 MALICIOUSNESS. 
 
 as to running vessel upon net, 538 
 
 MANUFACTURING. 
 
 use of water from stream for, 410, 441 
 
 MANUFACTURING CORPORATION. 
 
 duty to make lish-way past dam, 533 
 
 MAP. 
 
 designating street, conveyance of lots with reference to, 162 
 
 MARE. 
 
 warrant)' of, 634 
 
 MARITIME. 
 
 meaning of word, 370 
 
 MARSH.' 
 
 division of after draining; rights of purchasers, 187 
 
 as boundary of lands, 393 
 
 MARYLAND. 
 
 compact with Virginia, 561 
 
 MASSACHUSETTS BAY. 
 
 Colony of, laws as to fish and game, 509 
 
 MASTER. 
 
 liability for animal kept by servant, 621 
 
 chargeable with servant's knowleiige, 624 
 
 liability for injury by loose beam left on bridge over trench, 2 1 
 
 liability for servant's neglect, 35 
 
 duty of as to dangers in coal mine; burden of proof as to negligence 
 
 in case of accident, 133 
 
 injury to track walker by coal falling from tender, 137 
 
 injury to brakeman from telegraph wire, 140 
 
 liability for leaving wheel uncovered, 142 
 
 liability for negligence of agent iu performance of work, 232 
 
 MATERIALS. 
 
 of house, how granted, 355 
 
 right to place in highway, 71, 249, 250 
 
 MAXIMS. 
 
 aqua currit et debet currere ut solehat, 409, 544
 
 718 INDEX. 
 
 as to use of property so as not to incommode neighbor, 25- 
 
 causa pro.vima non remota spectatur, 658 
 
 ressante ratione cessat ipsa lex, 28& 
 
 conceditur et id sine quo res ipsa haheri non debit, 418 
 
 mjus est solum ejus est usque ad ccelum, 354 
 damnum absque injuiHa, 
 
 72, 147, 196,267, 280, 298,305, 308, 382, 442,463, 559 
 
 necessitas indueit privilegium quoad jura pricata, 647' 
 
 nullum tempus occurrit regi, 71 
 respondeat superior, 37, 335- 
 
 sah(s populi est suprema lex, 321 
 sic utere iuo ut alienum non Imlas, 
 
 7, 32, 148, 195, 344, 361, 438, 532, 546 
 
 MEANDERED STREAM. 
 
 as boundary of land, 395 
 
 MERGER. 
 
 of private injury, 75- 
 
 of easement in union of titles, 573 
 
 MESSUAGE. 
 
 grant of, including conduit, 418 
 
 MEXICAN GRANT. 
 
 boundary of patent issued upon, 388 
 
 MILL. 
 
 grant of with water-rights appurtenant, 419 
 
 grant of site, what passes as appurtenant, 418 
 right to use waters of floatable streams for, 413, 414 
 
 reasonable use of waters for, 545 
 
 damage to owners of, by taking water under public authoiity, 268- 
 
 right of owners of, under grant to have waters sent down, 424 
 
 upper and lower owners; rights of; negligence, 544 
 
 MILL-POND. 
 
 subsidence of; title to soil laid bare 398 
 
 right to incumber with logs, 413 
 
 MINE. 
 
 injury by, to stream of water, 155 
 
 dam to protect from casting water upon lower mine, 258 
 
 MINING. 
 
 use of waters for, 444 
 
 MINNESOTA. 
 
 title to navigable streams in, 388 
 
 MISCHIEF. See Injury.
 
 INDEX. 71l> 
 
 MISCHIEVOUS ACTS. See also Acts. 
 
 of third persous; liability for, 3G8 
 
 MISDEMEANOR. 
 
 in burning wooils, 660, 661 
 
 MISJOINDER. 
 
 of causes of action in trespass, 459 
 
 MISSISSIPPI RIVER. 
 
 as navigable river, 372 
 
 title to shore in Iowa, 386 
 
 MISSOURI. 
 
 rights of riparian owners on Mississippi River in, 389 
 
 MISTAKE. 
 
 in entering premises as contributory negligence, 631 
 
 MOHAWK RIVER. 
 
 title of in State, 385 
 
 MONKEY. 
 
 liability for injury by, 630 
 
 MONOPOLY. 
 
 of animals, 527 
 
 MOORING. 
 
 to wharves; right of, 568 
 
 MORT D'ANCESTOR. 
 
 limitation of -writs of, 177 
 
 MORTGAGE. 
 
 effect of discharge or redemption on easement, 573 
 
 MOTIVE. See Intekt. 
 
 MOTIVE POWER. See Street Railroads. 
 
 MOVABLE FREEHOLDS. 
 
 of riparian proprietors, 400 
 
 MUD. 
 
 refusal to open flood gates of dam for, 546 
 
 MUD FLATS. See also Flats. 
 
 use of between high and low water mark, 384 
 
 MULE. 
 
 escaping from hired pasture, 594 
 
 liability for viciousness of, 594
 
 720 INDEX. 
 
 MUNICIPAL AUTHORITIES. 
 
 injuuction to prevent from interfering with obstructions to navigation, 468 
 
 MUNICIPAL CORPORATIONS. 
 
 duty not to cast filth of sewers upon lands of others, 289 
 duty in controlling surface and percolating water, and in supplying 
 
 water artificially, 304 
 
 liability for negligence, in adopting plan of improvement, 310 
 
 or in execution of plan or in care of gutters and drains, 310 
 
 liable for neglect of absolute and private duties, 311 
 liability for selecting incompetent agent, 313, 315 
 
 liability for negligence of officers of, 333 
 
 rule of liability in New England, 338 
 
 limited liability of incorporated town or city, 35 1 
 
 liability for nuisance or invasion of rights, 321 
 
 under what circumstances liable for damage by waters, 325 
 control over shores and banks of navigable waters; duty of care of 
 
 structures thereon, 390 
 
 liability for failure to enforce ordinance, 392 
 
 use of waters to supply, 451 
 
 MUNICIPAL ORDINANCES. 
 
 as to sale of impounded animals, 601 
 
 as to strays, 602 
 
 MUSSEL BED. 
 
 elevation of not island, 383 
 
 MUSSELS. 
 
 right to dredge for, 537 
 
 NATURAL CHANNEL. 
 
 what is, 355 
 
 NATURAL EASEMENTS. 
 
 what are, 355 
 
 not lost by merger, 573 
 
 NATURAL OYSTER BED. 
 
 what is, 537 
 
 NATURAL RIGHTS. 
 
 limitation of, 7, 8 
 
 NATURAL WATERCOURSE. 
 
 what is, 357 
 
 NAVIGABLE WATERS. 
 
 test of navigability, 406, 407, 408
 
 INDEX. 7L* 1 
 
 test of public cbaracter of stream, 416 
 
 admiralty jurisdiction over; what are, 368 
 
 tidal streams, 373 
 
 non-tidal navigable waters, 375 
 
 title in shore, banks and bods of, 377 
 
 control over shores and banks of, 390 
 
 care of structures thereon, 390 
 
 title to lands conveyed along water front, 393 
 
 alluvion, accretion and dereliction, 396 
 
 floatable and private streams, , 402 
 
 right to use without compensation to riparian owners, 386 
 
 Ohio River included in, 466 
 
 right to kill game or take fish upon, 508 
 
 NAVIGATION. 
 
 unlawful obstruction to, 859 
 
 not legalized by time, 460 
 
 over land between high and low water mark; right to, 388 
 
 interference with by bridge, etc., 463 
 
 negligent injury to fish by, 537 
 
 right of United States to use soil under water in aid of, 661 
 
 NECESSARY EASEMENTS. 
 
 not lost by merger, 573 
 
 NECESSITAS INDUCIT PRIVILEGIUM QUOAD JURA 
 
 PRIVATA. 647 
 
 NECESSITY. 
 
 easement of, 159 
 
 right of way by, 166 
 degree of , 166-176 
 
 for killing dog, 688 
 
 NEGATIVE EASEMENT. 
 
 what is, 158 
 
 NEGLIGENCE. 
 
 defined, 361 
 
 slight, 361 
 
 ordinary, 368 
 
 gross, 368 
 contributory, 363, 558, 630, 664 
 
 comparative, rule of in Illinois and Georgia, 631 
 
 in admiralty jurisdiction, 868 
 
 anticipation of, 665 
 
 proximate cause; rule as to, 863 
 
 presumption of from cause of injury, 147 
 
 burden of proof of, as to fires, 648 
 question for jury, 539, 668 
 4G
 
 722 INDEX. 
 
 of third person as defense, 660 
 
 creating peril or neglecting effort to escape loss, 666 
 
 changed conditions, 667 
 
 consent to increase the danger, 668 
 
 as to condition of premises, 16 
 
 as to trap-door or hatchway unguarded, ' 22 
 
 in leaving cellar-way unprotected, 41 
 
 by throwing heavy bales into gangway in warehouse, 22 
 
 by owner of dangerous premises, 24 
 
 as to defective machine on premises, 24 
 
 in use of machinery in dangerous condition, 668 
 
 by moving in dark room, 24, 25 
 of stranger in entering manufacturing establishment to unload articles, 24 
 
 as to excavation, 26, 53 
 
 as to unsafe walls, 28 
 
 in permitting children to go upon street, 28 
 
 of duties transferred to others, 35 
 
 causing injury to traveler, 116 
 
 See also Highways. 
 
 proof of, to make injury from unusual cause a nuisance, 133 
 
 as to buildings, 148 
 
 injury by, in constructing, elevating or repairing party-wall, 231 
 
 joint liability for acts of agents in removing party-wall, 233 
 in adopting plan or in its execution, or in care of gutters and drains, 310 
 
 in the exercise of exclusive right to water, 449 
 
 in failure to build bridge in manner prescribed by law, 467 
 
 in navigation; injury to fisheries by, 538 
 
 as to rights of upper and lower mill owners, 544 
 as to floatage of logs, 549, 556 
 
 in driving logs; contributory, 558 
 
 effect of on easement, 580 
 
 in permitting horse to do injury, 607 
 
 in leaving horse at large on highway, 607 
 
 contributory, in case of injury from animals, 630 
 in respect to fires, 641, 648, 668 
 
 contributory, of party injured by fire, 664 
 
 in building, in violation of ordinance, 656 
 
 NETHERLANDS. 
 
 acquiring jurisdiction of rivers from, 530 
 
 NETS. 
 
 right to draw upon shore, 499 
 
 right to use in sea, 499 
 
 prohibition of for taking fish, 531 
 
 illegally used; destruction of, 533 
 
 injury to by vessel. 538 
 
 damages for partial destruction of, 539
 
 INDEX. 723 
 
 NEVADA. 
 
 law as to appropriation of water in 445 
 
 NEWARK. 
 
 rights of City of in Passaic River, 453 
 
 NEW JERSEY. * 
 
 grant from Charles II., 494 
 
 right of fisheries in, 494 
 
 public right in fisheries, 494 
 
 NEW YORK. 
 
 title of freeholders to waters of Harlem, 385 
 
 NON-TIDAL RIVERS. See also Stiieams. 
 
 as navigable waters, 375 
 
 NONUSER. 
 
 of water-power does not impair title, 425 
 effect of upon easement, 576, 579 
 
 NORTHWEST. 
 
 French customs as to shooting and fishing in, 625 
 
 NOTICE. 
 
 of adverse user, 237 
 
 of defect in sewer; necessity of, 329 
 
 of dangerous character of bees; presumption of, 587 
 of dangerous character of animals, 587, 593, 604, 610, 619 
 
 of propensity of domestic animals, 598 
 
 of propensity of ram, 610 
 
 of sale of animals impounded, 601 
 
 to principal, by knowledge of agent, " 625 
 
 of servant, 623 
 
 of fire to be set, 644 
 
 statutory provisions as to fire-escapes, 661 
 
 of nuisance, when necessary, 54, 55 
 
 of nuisance on premises acquired, 58-60 
 
 denying existence of highway in trespass, 80 
 
 NOVEL DE SEIZIN. 
 
 limitation of writs of, 177 
 
 NUISANCES. 
 
 what are, 0, 10, 153 
 
 distinguished from trespass, 152 
 
 public, 40 
 
 both public and private, 78 
 
 business in itself lawful, 11.14 
 
 authorized act cannot be, 307 
 
 by exceeding scope of powers conferred, 34
 
 724 INDEX. 
 
 injury from unusual cause not in itself, 133 
 
 caused by act of stranger, 104 
 
 not legalized by time, 71 
 
 private, right by prescription to maintain, 429 
 
 reasonable care as a defense, 1 1 
 
 application of doctrine of contributory negligen<ft to, 549 
 
 liability, of owner of land, 41 
 
 or occupant, 470 
 
 owner creating or purchaser or devisee continuing, 53 
 
 continuance of, 470 
 
 on leased premises, liability of landlord for, 40-68 
 
 occurring during term of lease, 61 
 
 liability of tenant, 45 
 
 effect of re-demise, 46 
 
 on premises descended subject to lease, 56,57 
 
 by construction of building from which ice and snow slide into 
 
 street, 47, 105 
 
 consisting in coal hole unguarded or defectively covered, 48, 52 
 
 by defective construction of building, 51 
 
 of building likely to fall, 103, 104, 148 
 
 of repairing building, 105 
 
 of buildings without fire-escapes, 663 
 
 of buildings shutting off breeze or prospect, 9 
 
 of smoky chimneys, 10 
 
 of tearing down buildings, 648 
 
 of fence more than six feet high, 1 
 
 created by falling fence, 648 
 
 of skating rink, 11 
 
 of steam engine, 1 1 
 
 by operation of engine and machinery, 153 
 
 of powder magazine, 10 
 
 rendering real property useless or uncomfortable for habitation, 131 
 
 of fertilizer factory, 1 1 
 
 of alkali works, 151 
 
 of smelting house, 438 
 
 of insufficient privy vault, 151 
 
 by defective construction of privy well of schoolhouse, 344 
 
 by ice harvesters, 259 
 
 of staiths in river, 259 
 
 of bridge, 463 
 
 of bridge in navigable river, 260 
 
 by casting sewage upon lands or into private watercourse, 290 
 
 as result of attempted improvement by city, 331 
 
 by obstruction to street between high and low water mark, 383 
 
 of dam across floatable stream, 415, 551 
 
 pf tunnel under island, 438 
 
 by unlawful obstruction to navigation, 468
 
 INDEX. 725 
 
 private, by obstruction of watercourse, 476 
 
 an highways, public, 72 
 use of highway which would constitute except for grant or 
 
 prescription, 35 
 
 by encroachment, 69 
 
 by use of steam as motive power, 72 
 
 by use of highway as market place, 74 
 by obstruction of street, 248, 383 
 
 cornice of building over street as, 264 
 
 bridge across street as, 264 
 
 of fence poles on edge of, 1 
 
 telegraph and telephone poles in streets, 96 
 
 created by negligence in, 99 
 
 owner of adjacent property must not create, 102 
 
 by insecure buildings near highway. 103 
 
 act of stranger making building insecure, 104 
 
 snow, ice or material falling from roof, 45, 105 
 
 repairing building, 105 
 
 aperture in sidewalk, 105 
 
 hole in highway, 120 
 
 detracting from safety of travelers, 131 
 
 of drinking troughs and fountains in street, 336 
 
 remedies for, 4 1 
 
 private right of action for special injury, 70, 78 
 
 individual not entitled to redress; public nuisance, 75 
 
 action on case for, 41,434 
 
 averment of special damages, 471 
 
 injunction to restrain, 76 
 
 information by attorney-general to restrain, 468 
 
 jurisdiction of equity in case of, 476 
 
 abatement of public nuisance in equity, 468 
 
 right of individual, 75, 469 
 
 by destruction of property, 533 
 
 NULLUM TEMPUS OCCURRIT REGL 71 
 
 OBSTRUCTION. 
 
 of highways. See Highways. 
 
 to flow of waters, 256, 300, 303, 355, 435, 460 
 
 at bridge; causing overflow, 435 
 
 by bridge, 468 
 
 by quarry debris, 432 
 
 remedies against, 468 
 
 right to remove from river to improve navigation, 412, 413 
 
 jurisdiction of equity over, 476
 
 726 INDEX. 
 
 OCCUPANT. 
 
 liability for uiiisance, 470 
 
 OCCUPATION. 
 
 of water by mill owner ; priority of, 645 
 
 OCEAN. 
 
 as boundary, 393 
 
 ODOR. 
 
 from artificial pond ; remedy for, 430 
 
 OFFICERS. 
 
 liability of municipality for negligence of, 334 
 
 duty to use public pound, 601 
 
 liability for failure to give reasonable food to impounded beast, 639 
 
 OHIO RIVER. 
 
 as navigable river of United States, 372 
 
 power of regulating bridges over, 466 
 
 OIL. 
 
 as part of the soil in which it is found, 80 
 
 liability for pollution of water by, 874 
 
 OMNIBUS. 
 
 right to stop in street for passengers, 248 
 
 OOZING. See Percolation. 
 
 ORDINANCE. 
 
 liability of city for failure to enforce, 392 
 
 as to sale of impounded animals, 601 
 
 regarding strays, 602 
 
 violation of, as to powder magazine, 650 
 
 negligence in building, in violation of, 656 
 
 ORDINANCE OF 1787. 
 
 provisions as to navigable waters, 372 
 
 effect of as to free use of navigable waters, 511 
 
 ORDINARY CARE. 
 
 what is, 31 
 
 as applied to dams, 431 
 
 OREGON. 
 
 title of land between high and low water mark on Columbia River, 388 
 Admission Act not violated by bridge, 464 
 
 OUSTER. 
 
 by flooding land, 432 
 
 of corporation ; effect on fishery, 500
 
 INDEX. 727 
 
 OUTLET. 
 
 insufficient ; liability for consequent overflow, 435 
 
 OVERFLOW. 
 
 caused by obstruction of watercourse ; liability for, 438 
 
 injurious effect of on lands, 433 
 
 caused by bridge ; liability for, 434 
 
 from unprecedented storm ; liability for, 435 
 caused by levees, trestles, etc., where flow was increased by natural 
 
 causes, 467 
 
 caused by floating logs on stream, 556 
 
 OVERSEERS OF THE POOR. 
 
 powers of, 346 
 
 OWNER. 
 
 liability for dangerous condition of premises, 41 
 
 liability for nuisance, 44, 470 
 
 on estate descended or acquired subject to lease, 56, 57, 59 
 
 of soil, right of absolute dominion, 147 
 
 subject to easement; rights of, 265 
 
 liability for lack of fire escapes on leased buildings, 663 
 
 of city lots; duty regarding surface or percolating waters, 302 
 
 right to control surface or superticially percolating waters, 294 
 
 OWNERSHIP. 
 
 of States, 372 
 
 recital of in agreement as to use of water 459 
 
 OYSTERS. 
 
 exclusive grant by State of right to raise, 379 
 citizens of other States; discrimination against as to oyster fisheries, 
 
 379, 493 
 
 intent as to violation of law against nonresident planting oysters, 494 
 planting of does not give title to laud under water by prescription, 424 
 
 grant of right to dredge for, 500 
 
 rights as to oyster fisheries, 536 
 
 lawful lime for planting and gathering, 540 
 
 PACIFIC STATES. 
 
 riparian rights in, 443 
 
 prior appropriation of waters in, 444 
 
 PAPER-MILL. 
 
 grant of water for; quantity, 423 
 
 PARENT. 
 
 recovery for injury to child by dog, • G24
 
 728 INDEX. 
 
 PARK. 
 
 action for hunting in, 528 
 
 liability for injury by deer in, 630 
 
 PARTITION. 
 
 of party-wall, 214 
 
 PARTNER. 
 
 liability for dog owned by firm, * . 623 
 
 PARTY-WALL. 
 
 injury to, by contractor; liability for, 89 
 
 attempt to raise to darken windows, 179 
 
 closing up windows in, 211 
 
 easement in, beyond boundary, 170 
 
 agreement in relation to, to create easement, 184 
 
 easement of support, 201 
 title in and right to strengthen and elevate; contribution for repair, 208 
 
 destruction of, 216 
 
 covenants respecting; personal and those running with land, 219 
 
 liability for injury in constructing, elevating or repairing, 231 
 
 use to support independent wall, 231 
 ownership and right to use, 205, 206 
 
 agreement to build as creating an estoppel, 211 
 
 contribution to expense of, 225 
 
 PASSAGE. 
 
 on rivers; right of, ' 416 
 
 PASSAGEWAY. See also Slctceway. 
 
 as appurtenant to easement, 159 
 
 right to cover or build fence upon, 253 
 
 right of light, air and prospect over, 253 
 
 PASSIAC RIVER. 
 
 rights of City of Newark in, -' 453 
 
 PASSENGER. 
 
 on ferry; rights of; liability for injuries to, 488 
 
 PASTURE. 
 
 grant of right of, carrying right of way, 243 
 
 PATENTS. 
 
 calling for river and its meanders; effect as to soil under water in Ken- 
 tucky, 388 
 
 PEAT BED. 
 
 right to draw water from, 257 
 
 liability for starting fire in, 643
 
 INDEX. T2i> 
 
 PECULIAR INJURY. 
 
 in case of uuisauce, ■what is, 472 
 
 PENALTY. 
 
 against use of state lands by citizens of other States for raising oysters, 379 
 
 for fishing witbout license, 536 
 
 for willfully setting fire, G45 
 
 PERCOLATION. ' 
 
 of water; liability for injuries by, 269 
 
 of water from gutters and catcb-basins in highway, 350 
 
 of underground waters, not within doctrine of prcscripllon, 425 
 
 right to draw water from pond by, 454 
 
 PRE-EMPTIONER. 
 
 right of as to water, 449 
 
 PERIL. 
 
 duty not to creaia, 666 
 
 PETROLEU^I. 
 
 part of soil, 80 
 
 PIER. 
 
 public or private, 563 
 
 right to enter upon, 390, 565 
 
 right to make, 358,559 
 
 right of boom company to construct, 556 
 
 in navigable part of Mississippi River, 386 
 
 constructed under Act of Congress, 380 
 
 dangerous defect in, liability for, 48 
 
 liability of tenant, 67, 568 
 
 liability of landlord, 112 
 
 when a nuisance, 477 
 
 appropriation of by railroad; compensation to owner, 386 
 
 of bridge; necessity of clianging, 467 
 
 PIGS. 
 
 injury by to cow and calf, 593 
 
 PILGRIM FATHERS. 
 
 notions as to rights of common people, 509 
 
 PILING. 
 
 elTeot to cause overflow ; liability for, 435 
 
 of bridge in making repairs; liability for injary by, ' 559 
 
 PISCATAQUIS RIVER. 
 
 as floatable stream, 550 
 
 PLACE OF AMUSEMENT. 
 
 requirement of fire escapes upon, '061
 
 ToO INDEX. 
 
 JPITFALLS. See also Excavatiojt. 
 
 grounds of liability of owner of land, 150 
 
 PLAN. 
 
 conveyance of lots upon as giving easement, 161 
 
 defective; liability of city for, 329 
 
 PLANKS. 
 
 power to float as test of navigability, 406 
 
 PLATFORM. 
 
 made of scow moored to wharf, 567 
 
 PLEADING. 
 
 averment of negligence in trespass, 8 1 
 
 allegations as to diversion of stream, 458 
 
 matters of aggravation, 459 
 
 averment of special damages, 471 
 
 allegation of damages as to renting of house, 476 
 
 averment of navigabinty of stream in suit for injunction, 476 
 
 necessary averments of scienter, 619 
 
 PLEASURE. 
 
 prerogative right of, 502 
 
 PLUMBER. 
 
 right of water company to make selection of, 39 
 
 negligent work of in laying drain; liability of city for, 333 
 
 POISONOUS TREE. 
 
 liability for, 123 
 
 POLES. 
 
 for telegraph and telephone in street, right to, 95 
 
 liability for injury by fall of, 142 
 
 in streets for street cars, 251 
 
 and wires, preventing extinguishment of fires, 668 
 
 POLICEMAN. 
 
 falling over unprotected edge of lot in pursuit of person, 122 
 
 injury to by explosion of electric apparatus, 156 
 
 POLICE POWER. 
 
 to limit height of fence, 12,13 
 
 difference of degree, 12 
 
 POLLUTION. 
 
 of water by tenants; liability of landlord, * 45 
 of underground currents, springs and streams, 155, 274 
 
 of wells and springs, 287 
 
 of stream, by washing of soil from cultivated land, 9 
 
 by offal from bam, 8
 
 INDEX. 73 1 
 
 by refuse of mine, 1 55 
 
 by sewage, 291 
 
 injunction to prevent, 293 
 
 as a nuisance; right of action for, ^^ 80 
 
 POND. 
 
 as distinguished from stream, 358 
 
 detaining waters in for water supply, 257 
 
 in Massachusetts held in trust for public, 383 
 
 as boundary of land, - 394 
 
 easements in acquired by grant, 418 
 
 grant of right to draw water from, 423 
 
 right to draw water from by percolation, 454 
 
 rights to appropriate waters of, 454 
 
 right to lower outlet and draw down, 547 
 
 protection of licensee's right in, , 457 
 
 control of fisheries in, 495 
 right to fish in, 257, 499 
 
 Colonial Act as to fish and fowl of, 509 
 
 trespassing upon, for fishing, 517 
 
 decoy; willfully disturbing by shooting, 527 
 
 artificial remedy for ofifensiveness of, 430 
 
 made in stone quarry, 540 
 
 proximate cause as to injury from breaking of, 651 
 
 POND-NET. 
 
 removing stakes; suit for, 535 
 
 POOL. 
 
 water in; ownership of, 357 
 
 POOR. 
 
 overseers of; powers of, 346 
 
 POSSESSION. 
 
 action for in respect to reservation of wharf ptivileges, 561 
 
 POSTING. 
 
 of notices of sale of animals impounded, 601 
 
 POTOMAC RIVER. 
 
 injury to fish in by anchoring vessel, 538 
 
 POULTRY. 
 
 trespass by, 59?. 
 
 POUND-KEEPER. 
 
 liability for sale of animal without notice, 600 
 
 replevin against, 602 
 
 POWDER MAGAZINE. 
 
 as a nuisance, ' 10 
 
 liability for explosion of, 630
 
 732 INDEX. 
 
 PRAIRIE. 
 
 turning cattle upon, 594 
 
 forbidding fires in, 644 
 
 PRAIRIE FIRES. 
 
 forbidden, 644 
 
 proximate cause of injury caused by back fire, 651 
 
 liability for damages caused by, 659 
 
 PREMISES. See also Excavation. 
 
 dangerous, liability for injuries caused by, 16 
 
 duty to keep safe, 18 
 
 PREROGATIVE. 
 
 rights of King, in rivers, 502 
 
 as to hunting, 503 
 
 PRESCRIPTION. 
 
 when adverse, 237' 
 
 claim of right necessary, 427 
 
 as to use of highway which would otherwise be a nuisance, 35- 
 
 easement by, ' 176 
 
 use to create, 234 
 
 interruptiou of, 236 
 
 to defeat or destroy public use of stream, 417 
 
 no right by to obstruct stream, 460- 
 
 easements in flowing water acquired by, 424 
 
 presumption of grant of water from, 424 
 
 right by to dam and water of stream, 550- 
 
 as to use of flume, 427 
 
 as to use of water on public lands, 446- 
 
 to justify fishing, 499 
 
 to give right to create warren, 527 
 
 right by to bar passage of fish, 532- 
 
 to give right to make wharf, etc., 559 
 
 against exercise of servitude, 580- 
 
 easement acquired by perfect; extinguishment of, 581 
 
 to make dividing line equivalent to fence, 596 
 
 PRESERVATION. 
 
 of fish; provisions for, 640- 
 
 of game; statutes for, 541 
 
 PitESUMPTION. 
 
 of negligence from cause of injury, 133, 147 
 
 as to danger from machinery, 146- 
 
 as to defective appliances in case of injury to passenger, 155 
 
 as to party-wall, 203 
 
 of grant of way, 237 
 
 as to continuance of unlawful diversion, 459
 
 INDEX. 733 
 
 as to immemorial use of fishery, 499 
 
 of release or discharge of easement, 580 
 
 of notice as to dangerous character of bees, 587 
 
 as to amount of damage done by each of several animals, 594 
 
 of negligence by permitting horse to escape, 612 
 
 PRIORITY. 
 
 of occupation or use of water by mill owner, 545 
 
 PRIVATE FISHERIES. 
 
 right of owner of both sides of stream, 501 
 
 See also Fisheries. 
 
 PRIVATE STREAMS. 
 
 what are, 402 
 
 liability for emptying sewage into, 291 
 
 PRIVATE WAY. 
 
 acquired for inhabitants of town by prescription, 235 
 
 presumption of grant of, 237 
 
 PRIVITY. 
 
 of estate or tenure, 222, 224 
 
 as to easement in party-wall, 184 
 
 PRIVY. 
 
 liability for insufficiency of wall, 151 
 
 of school-house; defective construction of well of, 344 
 
 liability for leaving vault of unguarded, near sidewalk, 122 
 
 PROFIT A PRENDRE. 
 
 effect of custom to create, 188 
 
 right to soil or profits of soil of another, 355 
 
 PROFITS. 
 
 prospective, from use of fishing nets, 539 
 
 PROPERTY. 
 
 right of owner's use, extent of, 147 
 
 reasonable limitations as to enjoyment, 152-156 
 
 PROPAGATION OF FISH. 
 
 provisions for, 540 
 
 PROPOSED STREET. 
 
 conveyance of lots abutting on, . " 161 
 
 PROSPECT. 
 
 over passageway; right of, 253 
 
 PROTECTION OF FISH. 
 
 legislative regulations for, 529
 
 734 INDEX. 
 
 PROVIDENCE. 
 
 gifts of, 35r 
 
 interposition of; effect on easement, 576- 
 
 PROXIMATE CAUSE. 
 
 as creating liability for injury, 142 
 
 of injury from broken dam, 650 
 of injury by striking projecting cellar door when falling upon ice, 107 
 
 of injury caused by frightened horse, 651 
 
 of injury to driver of runaway horse frightened by street car, 107 
 
 of fire resulting from falling building, 652 
 
 of scalding of horses on breaking of bridge by steam boiler, 656 
 
 PRUDENCE. See also Negligence. 
 
 not judged by event, 185- 
 
 amount required in constructing dam, 432 
 
 PUBLIC BRIDGE. See also Bridge. 
 
 right to build, 463- 
 
 PUBLIC LAND. 
 
 floatable streams as part of. 404 
 
 prior appropriation of waters on, 444 
 
 PUBLIC PIER. See also Pier. 
 
 what is, 56S 
 right to use, 390, 565 
 
 PUBLIC RESORT. 
 
 liability for animals /e?'<E naturce in, 689" 
 
 PURCHASER. See also Grantee. 
 
 liability for nuisance, 54 
 
 necessity of notice, 54 
 right of as to party-wall, 219, 230- 
 
 liability as to bank or wall along river, 46 1 
 
 PURSE SEINES. 
 
 prohibiting use of, 535- 
 
 QUAIL. 
 
 statutes as to time for killing, 543- 
 
 transportation of, 643- 
 
 QUANTITY. 
 
 of water conveyed by grant, 422- 
 
 rule for computing, 423 
 
 QUARRY. 
 
 'ise of to draw water from pond, 454;
 
 INDEX. 735- 
 
 QUASI EASEMENT. 
 
 ■what is, 166 
 
 QUESTION. 
 
 for jury, as to negligence, 539, 668 
 
 as to care of person injuicd, 130 
 
 as to reasonable safety of cover to opening in sidewalk, 130 
 
 as to abandonment of easement, 577 
 
 as to proximate cause, 658 
 
 QUOD PERMITTAT. 
 
 as remedy for nuisance, 434 
 
 RABBITS. 
 
 ftvce, naturw, 587 
 
 RACEWAYS. 
 
 easements in, 571 
 
 RAFT. 
 
 right to does not carry right to deposit timber on private property, 562 
 
 RAILING. 
 
 duty to erect around opening, 20 
 
 with pointed top; injury to traveler, 26 
 
 want of, along unsafe embankment, liability for, 
 
 47 
 
 along highway, duty to make, 1 20 
 
 RAILROAD. 
 
 ownership of adjacent lands under water, 395 
 
 running locomotive over common path without warning, 20 
 
 use of streets for switch-yard for making up trains, 3-4: 
 
 on highways as nuisance, 72 
 
 on shores of navigable rivers, when a nuisance, 478 
 
 breaking of rail from frost, 137 
 
 right of land owner to use of right of way, 240 
 
 liability for switch improperly placed, 253 
 
 liability for injuries to laud not taken, 266 
 
 liability for interfering with surface water, 297 
 
 prescriptive right to overflow lands by defective bridge, 429 
 
 liability for overflow caused by bridge, 434 
 
 duty to maintain draw-bridge in river, 466 
 liability for overflow caused by levees, trestles, etc., where flow was 
 
 increased by natural causes, 467 
 liability for setting fire by locomotives, 643, 665, 666 
 
 duty to extinguish fires set by locomotives, 646 
 
 destruction of property to prevent spread of fire, 647 
 
 negligence in placing hay-stacks near, 665
 
 736 INDEX. 
 
 RAILROAD CAR. 
 
 liability for injury by to boy, 684 
 
 RAINFALL. 
 
 unusual; liability for injury by, 332 
 
 liability for collecting from roof and discharging on land of others, 297 
 
 RAKES. 
 
 disturbing oysters by, 537 
 
 RAM. 
 
 notice of propensities of, 610 
 
 procured by tenant; liability of executor, 623 
 
 RANCH. 
 
 right to -waste water from, under judgment, 450 
 
 RAVINE. 
 
 not natural watercourse, 358 
 
 right to discharge surface water through, 424 
 
 REASONABLENESS OF USE. 
 
 of waters, 410 
 
 of floatable and private stream, 402 
 
 for mill, 545 
 
 RECITALS. 
 
 in deed as to right in party-wall, 215 
 
 in agreement as to use of water; estoppel by, ' 459 
 
 RECLAIMED LAND. 
 
 rights of littoral proprietors, 359 
 
 power of riparian owner to reclaim, 381 
 
 by wharf; title to, 385 
 
 made by breakwater; ownership of, 563 
 
 RECREATION. 
 
 right of, by custom, 188 
 
 boating for, 188 
 
 prerogative right of, 502 
 
 RECORD. 
 
 of sealed release of easement; failure to make, 572 
 
 REFUSE. 
 
 offense of putting in waters where fish are, 540 
 
 RELEASE. 
 
 to extinguish easement, 570 
 
 REMAINDERMEN. 
 
 liability for nuisance on estate descended subject to lease> 56
 
 INDEX. t li t 
 
 REMEDY. See also Abatement; Action; Nuisance. 
 
 for diversion of flowing water, 455 
 
 for obstruction to flow of stream, 468 
 
 RENTAL VALUE. 
 
 diminished by overflow ; as measure of damages, 434 
 
 RENUNCIATION. 
 
 of easement, 576 
 
 REPLEVIN. 
 
 against poundkeeper, 601 
 
 RESERVATION. 
 
 of easement, 159 
 
 right to accretions, 400 
 
 of fish in grant, 500 
 
 of wharfing privileges, 560 
 
 of right of cutting timber and grazing in woods, 579 
 
 RESERVOIR. 
 
 lial)ility of escape of water from, 270-272 
 
 liability for insufHciency; construction of, 439, 546 
 
 right to have water held back, 423 
 
 of upper proprietor; right of lower grantee to use, 424 
 
 right to take waters from stream for use of locomotive engines, 457 
 
 right to the fish in when drained, 500 
 
 contribution to maintenance of, 547 
 
 RESPONDEAT SUPERIOR. 37, 335 
 
 RESTRICTIONS. 
 
 upon fishing and hunting rights, 503 
 
 REVERSION. 
 
 liability of owners of, subject to lease, for nuisance, 57 
 
 effect of agreement between tenants for years as to party-wall, 205 
 
 REVOCATION. 
 
 of license, 181 
 
 of contract for driving logs, 557 
 
 RIFFLES. 
 
 effect of on navigability of stream, 403 
 
 RIGHT OF WAY. 
 
 as an easement in gross, 159 
 
 bj'^ necessity, 166 
 
 degree of necessity, 166-176 
 
 use to create, 234 
 
 license to establish, . 238 
 47
 
 738 INDEX. 
 
 extent of use, 238 
 
 across railroad; acquired by prescription; extent of, 239 
 
 implied in grant of pasture, etc., 243 
 
 to reach hi,£^hway; effect of discontinuing highway, 844 
 
 care required in use of 845 
 
 right to remove gates, 845 
 
 right to erect gates, 245 
 
 reasonable use, 245 
 
 right of foot-way, 245 
 
 to buildings; effect of decay of buildings, 575 
 
 effect of destruction of buildings upon, . 5"? 3 
 
 effect of habitual use of another way, 579 
 
 RIGHT. 
 
 writ of, 177 
 
 RIPARIAN RIGHTS. 
 
 what are, 358 
 
 title of riparian owner, 375 
 
 where bounded by high-water mark, 379 
 
 where by low-water mark, 380 
 
 railroad company as adjacent owner of lands under water, 395 
 
 effect of railroad on other owners' rights, 395 
 
 in floatable and private streams, 402 
 
 reasonable use of floatable and private streams, 402 
 as to natural flow of stream, 409, 460 
 right to divert water of stream, 409, 410 
 
 authority of company to take water from stream to a distance, 410 
 
 as to waters diverted to supply cities, 451 
 
 reasonable use of water, 410 
 
 as to use of water of lake, 411 
 
 damage to by obstruction of watercourse; what consists of, 432 
 
 as to use of running water, 440 
 
 remedy for diversion of flowing water, 455 
 
 on navigable waters does not extend to fish or fowl, 510 
 
 exclusiveness of as to use of nets and appliances fastened to soil, 517 
 
 to appropriate bank for logs and log-way, 556 
 
 RIVERS. See also Waters. 
 
 right to cut and take ice from, 260 
 
 as public highways, 383 
 
 title of riparian proprietors, 383 
 
 as boundary of laud, 394 
 
 title to bed on change of course, 398 
 
 test as to private ownership, 416 
 
 easement in acquired by grant, 418 
 
 ROCK. 
 
 right to remove ledge of from stream, 462
 
 INDEX. 
 
 :3a 
 
 ROOKERY. 
 
 action for disturbance of, 
 
 RUNNING WATER. 
 
 right to use of, 
 
 528 
 
 410,441 
 
 ST. LOUIS. 
 
 eastern boundary of in Mississippi "River, 
 
 SALE. 
 
 right to hold water for, 
 
 of water by riparian owner, 
 
 of animals impounded, 
 
 SALUS POPULI EST SUPREMA LEX. 
 
 SAND. 
 
 accumulated as effect of dam; liability for, 
 
 SAND BANK. 
 
 as tide land, 
 
 SAND BARS. 
 
 effect of on navigability of stream, 
 
 SAND HEAPS. 
 
 as islands. 
 
 SAVANNAH RIVER. 
 
 jurisdiction over, 
 
 SAW-DUST. 
 
 offense of putting in waters where fish are, 
 deposit of to destroy boating, 
 
 SCHOOL BUILDINGS. 
 
 requirement of lire-escapes upon^ 
 
 SCHUYLKILL RIVER. 
 
 jurisdiction over, 
 
 SCIENTER. 
 
 as to character of animals, 
 knowledge of servant, 
 
 SCOW. 
 
 as platform moored to wharf, 
 
 SCUM. 
 
 on artificial pond; remedy for. 
 
 593. 604, 610. 
 593,604, 610, 
 
 389 
 
 446 
 450 
 601 
 
 321 
 
 433 
 
 383 
 
 403 
 
 383 
 
 372 
 
 540 
 562 
 
 661 
 
 372 
 
 615.619 
 615. 619 
 
 567 
 430
 
 740 INDEX. 
 
 SCUTTLE-HOLE. 
 
 in sidewalk, liability for injuries occasioned by, 108, 114 
 
 SCUTTLING OF BOAT. 
 
 proximate cause of lire, 656 
 
 SEALED INSTRUMENT. 
 
 releasing easement; failure to record, 578 
 
 SEALS. 
 
 right of taking, 497 
 
 SECRETARY OF WAR. 
 
 as agent of Congress to determine lawfulness of bridge, 465 
 
 SEEDS OF DISEASE. 
 
 as unsoundness of horse, 635 
 
 SEINES. 
 
 prohibiting use of, 535 
 
 as obstruction to navigation, 640 
 
 SELF-DEFENSE. 
 
 killing dog in, 628 
 
 SERVANT. See also Master. 
 
 liability for animal kept by, 621 
 
 knowledge of will charge master, 623 
 
 liability for fires started by, 645 
 
 willfully setting fire; penalty for, 645 
 
 SERVIENT OWNER. See Easement. 
 
 SERVITUDE. See Easement. 
 
 SETTING BACK WATER. 
 
 to damage of upper mill owner; liability for, 548 
 
 SETTLER. 
 
 on public lands; right to appropriate water, 446 
 
 SEVERAL FISHERY. 
 
 what is, 498 
 
 SEWAGE. 
 
 damage by escape in cellar; liability for, 273 
 
 discharge of, filling up channel, 562 
 
 SEWERS. 
 
 private, liability for damage to others, 1 23 
 
 liability of town for damages occasioned by, 265, 289, 325 
 
 liability of municipality for negligence in respect to, 
 
 310 
 
 right of city to empty into sea, 
 
 308
 
 INDEX. 741 
 
 SHED. 
 
 lor public purpose as connecting liuk between laud and water carriers, 391 
 
 SHEEP. 
 
 trespass by, 691 
 
 close-berded; trespass by, 693 
 
 driven on land for pasturage, as trespassers, 696 
 
 worry of as cause for killing dog, 686 
 
 SHELL FISH. See also OvsTEns. 
 
 rigbt to take below bigb-watcr mark, 686 
 
 right of gathering at common law, 610 
 
 right to drag for, 637 
 
 SHINGLE-MILL. 
 
 change of machinery in, as affecting amount of water allowable for, 422 
 
 SHIPPING. 
 
 hindering passage of vessels by filling up flats, 381 
 
 injury to vessel by striking bottom of slip, 369 
 
 injury to old and unseaworthy vessel, 369 
 
 right of action for injury to vessel by defective bridge, 472 
 
 use of licensed vessel in fisheries, 496 
 
 SHOOTING. See also Huntixo. 
 
 for purpose of disturbing decoy pona, 687 
 
 SHOP. 
 
 duty to keep safe, 19 
 
 SHORES. See also Waters. 
 
 of navigable waters not granted to United States, 371 
 title of national or state government in sea shore aud banks and beds 
 
 of tidal streams, 377 
 
 control of municipal corporations over, 390 
 
 structures upon, 390 
 
 title to lands conveyed along water front, 390 
 
 alluvion, accretion and dereliction, 396 
 
 right to draw nets upon not belonging to fishery, 499 
 
 authority of boom company to use, 656 
 
 SHRIMPS. 
 
 lawful time for planting and gathering, 540 
 
 SIC UTERE TUO UT ALIENUM NON L.^DAS 
 
 7, 32, 148, 195, 344, 361. 438, 532, 546 
 
 SIDEWALK. 
 
 as invitation to use land, 80 
 
 invitation to enter upon premises, 20 
 
 duty of tenant to keep safe, 52 
 
 aperture in, liability for, 108
 
 742 INDEX. 
 
 excavation in or near, 116 
 
 driving upon in violation of ordinance, 130 
 
 SKATING RINK. 
 
 as nuisance, 11 
 
 SLATS. 
 
 negligently placed in road, liability for, 150 
 
 SLED. 
 
 damage by stake of, to sleigh in highway, 366 
 
 SLEIGH. 
 
 upsetting of, as presumptive negligence, 156 
 
 upset by Striking switch; liability of railroad, 253 
 
 upsetting of in highway; liability for, 366 
 
 SLIDING. 
 
 on sidewalk; injury to traveler, 366 
 
 SLIP. 
 
 injury to boat by striking bottom of, 369 
 
 SLUICES. 
 
 right to make from running brook, 442 
 
 SLUICEWAYS. 
 
 for logs past dam, 549 
 
 sufficiency of, 552 
 
 effect of increased capacity of stream, 552 
 
 SMELTING HOUSE. 
 
 as nuisance, 438 
 
 SMOKE. 
 
 of smelting house as nuisance, 438 
 
 SNOW. 
 
 fall from roof, liability for, 8, 47, 105 
 
 no proof of negligence needed, . 14 
 
 SOAP FACTORY. 
 
 as nuisance, 
 
 131 
 
 SOGGY LANDS. 
 
 caused by percolation, 430 
 
 SOIL. 
 
 lateral support of, 190 
 
 liability for abstracting, 270 
 
 of another; right to profits of, 355 
 
 between high and low water mark; vested interest la, 382 
 
 liability for fire spreading in, 642
 
 INDEX. 743 
 
 SOUNDNESS, 
 
 warranty of, 634 
 
 SOVEREIGN. 
 
 title of to land unacr water and shores of navigable waters, 378 
 
 SOW. 
 
 injury by to cow and calf, 698 
 
 SPANISH FEVER. 
 
 duty of owners of cattle, 633 
 
 SPECIAL INJURY. 
 
 from nuisance; what constitutes, 472 
 
 SPLENIC FEVER. 
 
 duty of owners of cattle, 633 
 
 SPORTING. 
 
 regulatioQ of by Legislature, 529 
 
 SPORTSMEN. 
 
 clubs of, attempt to acquire exclusive rights, 515 
 
 SPOUT. 
 
 liability for damage by water from, 2 70 
 
 SPREAD. 
 
 of fire, prevention of, 646-648 
 
 of cholera, prevention of, 648 
 
 SPRING. 
 
 interrupting supply of, 16 
 
 right to take water from, 165 
 
 license to use, right to revoke, 185 
 
 right to use; extent of right, " 257 
 pollution of, 274, 280 
 
 effect upon, of clearing or cultivating land, 281 
 
 ownership of, 452 
 
 right to divert, 453 
 
 right to appropriate water of under charter, 454 
 
 effect of drying up on easement, 576 
 
 SPRING GUNS. 
 
 liability for setting, 16 
 
 SQUIB. 
 
 liability for injury caused by, 144 
 
 SQUIREARCHY. 
 
 as affecting English law, 528 
 
 STAG. 
 
 knowledge of dangerous character of, 631
 
 744 INDEX. 
 
 STAGNATION. 
 
 of waters; liability for permitting, 304 
 
 STAIRWAY. 
 
 liability for injury to person slipping upon, 139^ 
 
 in building; right of part owners to use, 164 
 
 STAKES. 
 
 for pond-net; removal of, 536 
 
 STALLION. 
 
 care required to be taken of, BO© 
 
 STATE. 
 
 ownership of land below low-water mark, 379 
 
 protest of against bridge over navigable waters, 465 
 
 authority as to bridge over navigable river, 464,466 
 power to make railroad maintain draw-bridge in river between two 
 
 States, 466 
 
 control of fisheries in, 492 
 
 sale of land below high-water mark by, 560 
 
 prescribing lines for harbor, 563 
 
 regulation of wharfage charges by, 569 
 
 STATUTE. 
 
 authority of, as a defense for injury by business, 15-4 
 
 preservation of game, 541 
 
 as legislative grant, 561 
 
 of Limitations, as to claim of easement, 581 
 
 provisions of against kindling fires, 660 
 
 STEAM. 
 
 operation of street railroads by, 90, 251 
 
 scalding horses on breaking of bridge, 656 
 
 STEAMBOAT. 
 
 liability for drowning of passenger who falls overboard, 138 
 
 injury by defective draw-bridge; right of action for, 472 
 
 STEAM-BOILER. 
 
 liability for explosion of, 1 53 
 
 breaking bridge by weight of, 656 
 
 STEAM-ENGINE. 
 
 as nuisance, 11, 153 
 
 STEAM THRESHER. 
 
 liability for fire caused by sparks from, 666 
 
 STEPS. 
 
 to cellar-way, liability for leaving unprotected, 41
 
 INDEX. 745 
 
 STOCK LAW. 
 
 of J^ortli Carolina, 599 
 
 No-Fence Law of Georgia, 599 
 
 STONE. 
 
 grant of, how made, 356 
 
 STONE COPING. 
 
 fall of, from chimney, 149 
 
 STONE QUARRY. 
 
 making ornamental pouJ in, 540 
 
 STORE. 
 
 duly to keep safe, 19, 20 
 
 STORAGE. 
 
 of logs on bank, right to, 556 
 
 STORM. 
 
 duty to provide for in making dam, 431 
 
 unprecedented; liabilily for overflow caused by, 435 
 
 STRAND. 
 
 meaning of, 378 
 
 STRAYS. 
 
 damages done by, 586 
 
 municipal ordinances regarding, 602 
 
 STREAM. See also Waters. 
 
 diversion of; right to restore, 186 
 
 right to divert waters of, 440 
 pollution of, 8, 9, 274, 279, 296 
 
 right to use as a highway, 360 
 
 ownership of waters in, 357 
 
 title to bed of above tide-water, 389 
 
 floatable; navigability and ownership of, 402 
 
 easements in acquired by grant, 418 
 
 right to unobstructed flow of, 355 
 obstructions to flow of, 7, 256, 460 
 
 by public agents under legislative authority, 389 
 
 right to build bridge over, 462 
 
 navigability of above tide, 375 
 
 abandonment of navigability, 523 
 See also Navigable Waters. 
 
 STREETS. See Highways. 
 
 STREET RAILROADS. 
 
 conditions imposed upon; alteration of, 67
 
 ^46 INDEX. 
 
 motive power, 87, 88 
 
 chauge of, 95 
 
 operated by steam; when not allowed, 90 
 
 when allowed, 92 
 
 right to use electric motors, 94 
 
 presumption of negligence from collision, 155 
 
 STUBBLE. 
 
 liability for setting fire to, 645 
 
 SUBMERGENCE. 
 
 effect of on title to land, 400 
 
 SUBTERRANEAN WATERS. 
 
 distinction between surface water and, 279 
 
 pollution of, 274- 
 
 SUPERIOR POWER. 
 
 suspension of easement by, 575 
 
 SURFACE WATERS. See also Watees. 
 
 liability for injuries by, 269 
 
 distinction between rights in surface and subterranean waters, 279 
 
 right of land owner to control, 294 
 
 limitation of right, 294 
 
 liability of city for damages by, 325 
 
 as a watercourse, 358 
 
 SUSPENSION. 
 
 of easement by superior power, 575 
 
 SUSQUEHANNA RIVER. 
 
 right to fisheries in, 514 
 
 SWAMP LANDS. 
 
 reclaiming; damage to farm land caused by, 308 
 
 SWINE. See Hogs. 
 
 SWITCH-YARD. 
 
 use of street as, 34 
 
 TALKING. 
 
 in loud tone on highway as contributory negligence in case of injury 
 
 by dog, 632 
 
 TANNERY. 
 
 as nuisance, 131 
 
 injury to spring from, 280
 
 INDEX. Ti ( 
 
 TAX. 
 
 upon dogs, 628 
 
 TAX DEED. 
 
 boundary by river, 395 
 
 TELEGRAPH. 
 
 pipes for wires in streets, 98 
 
 injury to brakeman by wire, 140 
 
 poles in streets, right to. 95 
 
 wires, preventing extinguishment of fire, 668 
 
 TELEPHONE. 
 
 poles iu streets, right to, 95 
 
 pipes for wires in streets, 98 
 
 wires preventing extinguishment of fires, 668 
 
 TENANT. 
 
 duty as to sidewalk, 52 
 liability, for nuisance, 40-68. 45, 55 
 
 for keeping nuisance, 55 
 
 for nuisance occurring during tenancy, 6 1 
 
 necessity of notice as to nuisance, 55 
 
 of pier, liability of for injury, 568 
 
 right of, as to fire-escapes, 662 
 
 TENEMENTS. 
 
 common; injury to; suit to restrain, 475 
 
 TERRAPINS. 
 
 lawful time for planting and gathering, 540 
 
 TEXAS FEVER. 
 
 duty of owners of cattle, 633 
 
 THEATERS. 
 
 requirement of fire-escapes upon, 661 
 
 THRESHER. 
 
 liability for fire caused by sparks from, 666 
 
 THREAD OF STREAM. 
 
 as line of ownership, 521 
 
 TIDAL STREAMS. 
 
 navigability of, 373 
 
 TIDE. 
 
 obstruction of flow by structures, 381 
 
 TIDE MILLS. 
 
 right of owners to have flats kept open, 381
 
 748 INDEX. 
 
 TIDEWATER. 
 
 right to have flow over premises of others, 381 
 
 TIMBER. 
 
 liability for servant's failure to remove from street, Sft 
 
 standing upon a road way, right to remove, 'J'ft 
 
 grant of, how made, 355 
 
 right to raft does not carry right to deposit, 562 
 
 reservation of right to cut, 579 
 
 protection of against fire, 661 
 
 investigating as to cause of fires under statute, 661 
 
 TIME. 
 
 computation of to show prescription, 428 
 
 TITLE. 
 
 admission of in deed reserving water-right, 459 
 
 TOBACCO MILL. 
 
 as nuisance, 131 
 
 TOLL. 
 
 of fish for drawing boats upon beach, 497 
 
 TOLLBRIDGE. 
 
 right to build, 463 
 
 TONNAGE TAX. 
 
 power to impose, 391 
 
 TORNADO. 
 
 liability for fall of building caused by, 106 
 
 TORT. 
 
 damage must come fi'om wrongful act, 152 
 
 actions of; usual remedies for diversion of water, 458 
 
 TOWN. 
 
 right of inhabitants to private way, 23& 
 
 erecting bridge at joint expense of towns, 464 
 
 grant of bed of river by, does not pass right of fishing, 494 
 
 right to regulate fisheries, 540 
 
 TOWN HALL. 
 
 right to derive revenue from by renting, 345 
 
 liability of city as private owner of, S4& 
 
 TRAFFIC. 
 
 liability for injury caused by, without negligence, 146 
 
 TRAINS. 
 
 stoppage on street, 34
 
 INDEX. 74l> 
 
 TRAP-DOOR. 
 
 failure to guard or give warning of, 22 
 
 TRAPS. 
 
 liability for setting, 16 
 
 for children at play, 32 
 
 prohibiting use of for fish, 535 
 
 for cattle; by negligent fence, 598 
 
 TRAVELER. 
 
 who is, 125 
 
 person engaged in unloading goods, 125 
 
 stepping upon street to observe procession, 126 
 
 right to pass over adjoining lands when road is impassable, 124 
 negligence causing injury to, 116-132 
 
 right to recover for injury, 125 
 
 care required from, 124 
 
 contributory negligence of, 126 
 
 driving at lively rate in city streets, 127 
 
 driving blind horse, 127 
 
 right to assume safety of street, 114 
 
 knowledge of danger, 1 28 
 
 violation of ordinance by driving on sidcAvalk, ISO 
 
 negligence in running on sidewalk in the dark, 130 
 
 for pleasure, right upon navigable water, 514 
 
 TREES. 
 
 liability for fall of limbs, 122 
 
 liability for poisonous, ' 123 
 
 right of grantee to enter, to cut and carry away, 418 
 
 TRESPASS. 
 
 misjoinder of causes of action in, 459 
 for encroachment upon highway ; notice denying existence of highway, 80 
 
 defense of easement of public or third person, 81 
 
 distinguishable from nuisance, 152 
 
 to right of soil between high and low water mark, 384 
 
 for unlawful invasion of laud covered by water, 412 
 
 by taking water from stream without compensation, 452 
 
 by taking fish, 517 
 
 against rights of warren, 527 
 
 by fowling or angling, 528 
 
 by sending dog after game, 528 
 
 shooting from highway to kill game, 528 
 
 by forcing water on land of another, 547 
 by cattle; liability for, 585, 601 
 
 by bees, 587 
 
 by poultry, 591 
 
 by sow and pigs, 593
 
 750 ^ INDEX. 
 
 by close-herded sheep, 594" 
 
 liability of owners of animals for, 604 
 
 as contributory negligence in case of injury by animal, 631 
 
 TRESPASSER. See also Chilbken. 
 
 liability for injury to; duty to, ' 30, 32^ 
 
 injury to, by spring guns or traps, 16 
 
 on public pier; liability for injury to, 568 
 
 TRESTLES. 
 
 liability for overflow caused by, 467 
 
 right to fill up; causing overflow, 434 
 
 TRIAL. 
 
 question for jury, as to reasonable safety of cover to opening in side- 
 walk, 130 
 as to care of person injured, 130 
 as to negligence, 539 
 in respect to fire, 668 
 as to proximate cause, 658 
 
 TROTTING PARK. 
 
 licenses to use fences and buildings for advertiping, 182' 
 
 TROVER. 
 
 for hive of bees, 587 
 
 TUNNEL. 
 
 under Hennepin Island; injury by, 437 
 
 TURBINE WHEEL. 
 
 prescriptive right to use, 427 
 
 TURF. 
 
 liability for starting fire in, 642 
 
 TURNTABLES. 
 
 liability for injury to children by, 29 
 
 TWO CAUSES. See also Proximate CArss. 
 
 fire result of one of, 659' 
 
 UNDERGROUND WATERS. See also Sprinq 
 
 pollution of, 274 
 
 distinction between surface waters and, 279 
 
 doctrine of prescription not applicable to, 425 
 
 UNINCLOSED LAND. 
 
 use of way over, 236-
 
 INDEX. 751 
 
 UNINCORPORATED TOWN. 
 
 limited liability of for damage by water, 351 
 
 UNION OF TITLES. 
 
 to merge easeiut-nt, 673 
 
 UNITED STATES. 
 
 title of to sea shore and banks and beds of tidal streams, 371' 
 
 liability for use of land under water for ligbtbouse, 380 
 
 rigbt to use soil under water in aid of navigation, 561 
 
 UNRULY HORSE. 
 
 . liability for death of traveler in street caused by, 144 
 
 UPLAND. 
 
 title to and appurtenant rights, 384 
 
 rights of owner of accretion, 396 
 
 USAGE. 
 
 to create right. See Prescriptio:t. 
 
 as affecting fishery rights, 495 
 
 does not justify fishing in another's waters, 499 
 
 to establish right of inhabitants of locality to fishery, 500 
 
 as affecting right of fishing in stream, 502 
 
 USE. 
 
 of alley, 165 
 
 of water by mill owner; priority of, b45 
 
 USE AND OCCUPATION. 
 
 for use of party-wall, 230 
 
 for fishing, 499 
 
 USEFULNESS, 
 
 of easement, end of, 674 
 
 USUFRUCT. 
 
 of bed of stream, 644 
 
 VARIANCE. 
 
 between allegation and proof as to dataage by water, 433> 
 
 VAULT. 
 
 for storage of coal, liability for defective covering, 1 lO 
 
 of privy, near street left open and unguarded, 122 
 
 of schoolhouse, defective construction ut, S44 
 
 liabdity for percolations from, 154 
 
 VENDEE. See Purchaser.
 
 752 INDEX. 
 
 VENDOR. 
 
 liability. for nuisance after transfer, 55 
 
 VESSEL. 
 
 injury to, by striking bottom of slip, 369 
 
 old and unseaworthy vessel, 369 
 
 by defective bridge, 472 
 
 hindering passage of by filling up flats, 38 1 
 
 power to float as test of navigability of stream, 406 
 
 licensed, use of in fisheries, 495 
 
 scow platform is not, 567 
 
 VIBRATION. 
 
 caused by engine and machinery as a nuisance, 153 
 
 VICIOUS ANIMALS. See also Animals. 
 
 liability for injuries by, 604 
 
 trespass bj^; liability of owners of animals for, 604 
 
 liability of owner of vicious dog, 615 
 
 VILLAGE. 
 
 limited liability of for damage by water, 351 
 
 VIRGINIA. 
 
 compact with Maryland, 561 
 
 VISITOR. 
 
 shares in dskHijerg with other members of family, 25 
 
 VOLUME. 
 
 of water to be passed through dam, 547 
 
 WAIVER. 
 
 of duty to provide fire-escapes, 662 
 
 WALLS. See a^s^, Party-Wall. 
 
 un.safe, liability of owner, 28 
 
 to prevent eartlivrork of street from encroaching on premises; right of 
 
 action for, 80 
 
 fall of, upon neighbor's land, 154 
 
 of house, easement as to, 171 
 
 recovery for new wall of a house made necessary by taking land, 267 
 
 WANTONNESS. 
 
 as to running vessel upon net, 538 
 
 WAREHOUSE. 
 
 duty to keep in safe condition, 19 
 
 liability for death of person entering through dangerous hatchway 
 
 through unlocked door, 22 
 
 in connection with elevator, for public use, 391 
 
 effect of closing up windows of on easement of light, 579
 
 INDEX. 753 
 
 WARNING 
 
 to appioaching vessel of net. 538 
 
 WARRANTY. 
 
 of soundness of animals, 633 
 
 W^ARREN. 
 
 •what is; ri<;lit to create, 527 
 
 WASHING CARRIAGES. 
 
 right to use running water for, 441 
 
 WASHINGTON. 
 
 local laws and customs of as to appropriation of water, 448 
 
 WASTE WATER. 
 
 deed of right to use, 449 
 
 careless or extravagant use of, 449 
 
 of stream; judgment defining, 450 
 
 WATCH-DOG. 
 
 vicious; liability for injury by, C07 
 
 WATER-BAILIFF. 
 
 suit by for penalty, 536 
 
 WATERCOURSE. See also Watebs. 
 
 what is, 357 
 
 WATERFOWL. 
 
 use of boats to obtain, 529 
 
 WATER FRONT. 
 
 control of State over, 391 
 
 title to land conveyed along, 393 
 
 W^ATER PIPES. 
 
 in street, injunction to restrain, 98 
 
 killing child by rolling from pile, 137 
 
 freezing of; liability of city, 334 
 
 WATER-POWER. See also Waters. 
 
 right to damages for loss of by obstruction of stream, 432 
 
 WATERS. 
 
 interrupting source of well or spring, 16 
 
 from roof turning on neighbor's laud, 131 
 
 right to take from well as easement, 159 
 
 riglit to return stream to ancient bed, 186 
 
 easement as to outlet, 235 
 
 presumptive grant of right to use, 236 
 
 drain under ground conveying right to use, 258 
 48
 
 754 INDEX. 
 
 natural watercourse; use of to flow waters brought by artificial 
 
 means, 258 
 
 easement in as affected by negligence, 255 
 
 danger to others from escape of, 255 
 
 injury by escape from pipes in building, 256 
 
 care necessary in confinement of, 438, 440 
 
 in accumulated mass, liability for escape of, 270, 272, 273 
 
 liability for injury in permitting escape of, 430 
 
 declaring stream public highway by statute, 257 
 
 right to detain in pond for water supply, 257 
 
 use of stream for navigation, 257 
 
 cast by dam upon lower mine, 258 
 
 duties respecting and rights therein, 269 
 
 surface and percolating water and artificial drainage, 269 
 distinction between the rights in surface and subterranean waters, 279 
 duty of municipal corporations not to cast filth of sewers upon lands 
 
 of others, 289 
 duty of city in controlling surface or percolating water and in sup- 
 plying water artificially, 304 
 private watercourse; casting sewage into, 291 
 under what circumstances city liable for damage by water, 325 
 flow of, interfering with, 7 
 along natural bed, obstruction of, 256, 460 
 obstruction by bridge, 468 
 right to have stream unobstructed, 355 
 estoppel as to flowage right, 258 
 waters artificially brought, in natural watercourse, 258 
 right to erect barriers against, 300, 435, 461 
 barriers against surface waters in cities, 303 
 surface water, obstruction of, 258 
 prevention by wall, 258 
 grading of surface to change, 301 
 relief, in case of obstruction to flow of stream, 468 
 by indictment or information, 468 
 individual right to abate, 469 
 private right of action for obstructing watercourse, 471 
 jurisdiction of equity over obstruction, 476 
 liability for permitting to stagnate, 304 
 navigable; what are, 370 
 abandonment of navigability, 523 
 of States, 372 
 tidal streams, 373 
 non-tidal navigable rivers, 375 
 title of national or state government in sea shore and in the banks 
 
 and beds of tidal streams; title of riparian owner, 375 
 
 right of use without compensation to riparian owner, 386 
 
 right of free fishing in, 508
 
 INDEX. 755 
 
 control of municipal corporations over shores and banks; duty of 
 
 care of structures thereon, 390 
 
 title to land conveyed alono; a water front, 393 
 
 alluvion, accretion and dereliction, 396 
 
 ri,<iht to restore flow by removing accretions, 401 
 floatable and private streams; title of riparian owner; reasonable use: 
 
 dams and mills; log driving, 402 
 
 floatage of logs on, 402, 549 
 
 sluiceways past dam, necessity of, 550 
 
 sufficiency of, 552 
 
 duty of owner of dam to make, 549 
 
 ownership of watercourse, 357 
 
 of spring, 453 
 
 percolation of, 269 
 
 from vault, liability for, 1 54 
 
 duty of owner of city lands as to, 304 
 
 from gutters and catch basins in highway, 350 
 
 pollution, as a nuisance; right of action for, 80 
 
 of creek from barn, 8 
 
 by washing of soil from cultivated land, 9 
 
 by sewage, 291 
 
 by tenants, liability of landlord, 45 
 
 of wells and springs, 287 
 
 of underground waters, 155,274 
 
 by refuse of mine, 155 
 
 injunction to prevent, 293 
 
 riparian rights in Pacific States; diversion, 443 
 
 use of waters to supply cities, 451 
 
 remedy for diversion of flowing water, 455 
 
 surface, 269 
 
 barriers against in cities, 303 
 
 preventing flow of by wall, 258 
 
 distinguished from subterranean, 279 
 
 duty of cities to control, 304 
 
 duty of owner of city lands as to, 304 
 
 use of for purposes of hunting, 504, 507 
 
 rights of upper and lower mill owners, 544 
 
 right to lower outlet and draw down water of natural pond or lake, 547 
 
 "WATER SUPPLY. 
 
 duty of company to furnish pipes to citizens, 309 
 
 selection of person to make connections, 309 
 
 of cities; use of waters for, 451 
 
 WAY. See also Highways; Right of Wat. 
 
 negligence in use of or interruption of, 243 
 
 acquiescence in use of, 244 
 
 license to build arch over way does not excuse its obstruction, 244
 
 756 INDEX. 
 
 WELL. 
 
 interrupting supply of, 1ft 
 
 near line of street, liability for leaving unguarded, 117 
 
 liability for draining, 257 
 
 by excavation, 266 
 pollution of, 274,279 
 
 injury to by sinking neighboring well, 282 
 
 liability for diversion of water from stream by, SOS 
 
 duty of city to make examination of water of, 308 
 
 WHALE. 
 
 custom as to fishery, 49ft 
 
 WHARVES. 
 
 riparian rights as to, SSS' 
 
 right to make, 358 
 
 between high and low water mark; exclusive right to erect, 383 
 
 extent of right to build out, 384 
 
 right to build in Iowa below high-water mark, 38ft 
 
 right of City of New Orleans to build, 387 
 
 right of State to erect, 391 
 
 in San Francisco Bay as encroachment on soil of State, 388 
 
 power to exclude navigation by, ' 381 
 
 landing place; duty of city to establish, 390 
 legislative regulation of use of land between high and low water mark, 390 
 
 duty to keep in safe condition, 19 
 
 duty of city to keep in repair, 390- 
 
 liability for defect in, 48 
 
 liability of city for injury at, 344-. 
 
 duty of city to owner of floating coal yard, 391 
 
 when a nuisance, 477 
 
 unlawful interference with approach to, 561 
 
 public and private landings, 563> 
 
 liability of wharf owner or occupier, 566 
 
 boat as part of wharf, 567 
 wharfage fees and charges, 559, 568 
 
 wharfage tax, power to impose, 391 
 
 WHEEL. 
 
 liability of master for leaving uncovered, 148; 
 
 WHIP. 
 
 frightening of horse by snapping, 611 
 
 WIFE. 
 
 agency of husband in arbitration as to cost of party- wall, SIS- 
 WILD ANIMALS. See Animals. 
 
 WILD CREATURE. 
 
 ownership of, 58ft
 
 INDEX. 757 
 
 WILD-FOWL. 
 
 right to shoot from boat and to decoy, 504, 505 
 
 frightening by discbarge of gun; liability for, 506 
 
 right of shooting upon the water, • 512 
 
 WILLAMETTE RIVER. 
 
 erection of bridge over, 464 
 
 WILLFULLY SETTING FIRE. 
 
 penalty for, 646 
 
 WIND. 
 
 as intervening cause of loss by fire, 642, 643, 653, 657 
 
 change of as an intervening cause in case of fire, 654 
 
 WINDOW. 
 
 improper enlargement of, 255 
 
 closing or altering as affecting right to, 255 
 
 closing up; effect on easement, 579 
 
 WIRE-ROPE FENCE. 
 
 liability for damage to cattle by. 
 
 597 
 
 WIRES. 
 
 preventing extinguishment of fire, 668 
 
 WITNESSES. 
 
 as to quantity of water; competency of, 434 
 
 WOMEN. 
 
 driving on highway, duty toward, 31 
 
 care required of, 31 
 
 WOOD. 
 
 destruction of by fire set by locomotive, 666 
 
 WOODLAND. 
 
 liability for damage to by fire, 644 
 
 liability for setting on fire, 643 
 
 pK)hibiting burning of, 660 
 
 WORKHOUSE. 
 
 liability of city for management of, ' 347 
 
 WORKSHOPS. 
 
 requirement of fire-escapes upon, 661 
 
 WRIT. 
 
 of right, limitation of, 176, 177 
 
 WRONGFUL ACTS. 
 
 of lliird persons; liability for, 149, 368
 
 
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