text:
    DOMPIER v. LEWIS.
    1. Personal Injuries — Evidence—Res Gesmb.
    Where plaintiff was injured by a hammer he was using, what was said immediately after the injury, about the hammer or about the work, by a fellow workman to whom the hammer belonged, was not part of the res gestee.

    2. Trial — Witnesses—Cross-Examination.
    The circumstances must be exceptional to justify a party in cross-examining his own witness.
    3. Personal Injuries — Evidence.
    In an action for injuries caused by a chip flying from a hammer, opinion evidence as to the length of time the hammer had been in the process of chipping was inadmissible.
    4. Same — Infants—Liability of Master — Instructions to Jury.
    In an action for injuries caused by a chip flying from a hammer, an instruction that, if boys of plaintiff’s age (i. e., 17) would not appreciate the danger of using such a hammer, defendant owed the duty of giving warning, but, if the danger was such as would naturally be apprehended by boys of plaintiff’s age, he assumed the risk, was sufficiently favorable to plaintiff.

    5. Same — Inspection of Tools.
    Where a hammer, the property of a servant, was purchased from a reputable dealer, the master did not owe a fellow workman the duty of inspecting it.
    Error to Wayne; Hosmer, J.
    Submitted January 30, 1902.
    (Docket No. 111.)
    Decided June 24, 1902.
    Case by Alfred L. Dompier, by next friend, against Henry B. Lewis, for personal injuries. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Oscar M. Springer (T. E. Tarsney, of counsel), for appellant.

      Edwin F. Conely and Orla B. Taylor, for appellee.

      As to duty of master to instruct and warn his servants as to perils of employment, see note to James v. Lumber Co., (La.) 44 L. R. A. 33.

   Montgomery, J.

This is an action for negligent injury. The plaintiff, at the time of receiving the injuries in question, was 17 years of age, and was employed in the defendant’s machine shop as a helper to a mechanic. "While so employed he picked up a hammer in use by one Mr. Smith, under whom he was working, and undertook to pound down a seam in a piece of galvanized iron piping. A chip from the hammer flew, struck him in one of his eyes,, and resulted in the loss of the sight of the eye. The plaintiff testified that he had never used this hammer before, and that he was not acquainted with, and had no knowledge of, the temper of tools. The testimony shows that the hammer belonged to Mr. Smith; that it was purchased by him of a reputable firm; and the testimony was in conflict as to whether the hammer had previously chipped, or whether the face was smooth at the time plaintiff undertook to use it. Smith testified that he had no recollection of instructing the plaintiff to use the hammer; that it was not his practice to dircet a helper to do anything of that bind. Under the instructions given by the circuit judge, hereinafter referred to, the jury rendered a verdict for the defendant. The plaintiff brings error.

Error is assigned upon the refusal of the court to permit the following question, put to the plaintiff: State what Mr. Smith said to you about this hammer or about the work.” By the previous course of the examination, it is made to appear that this question related to the time immediately after the plaintiff received his injury, and it is contended that this was a part of the res gestee. We think there was no error in excluding this testimony. The injury had already occurred. It became a matter of narration, and was not even narration of the incident, but of the cause which led to the incident. We think the question was within the ruling of this court in Andrews v. Mining Co., 114 Mich. 375 (72 N. W. 242); Michigan Cent. R. Co. v. Coleman, 28 Mich. 440.

Error is also assigned upon the exclusion of a question put to the witness Smith, who was plaintiff’s own witness, which, it is said, was put for the purpose of refreshing his recollection. But the question was more in the nature of a cross-examination of the plaintiff’s own witness as to statements made out of court, and the occasion for such an inquiry is not made manifest by the record.

Error is also assigned upon a so-called hypothetical question, said to have been calculated to bring out the time the hammer had been in the. process of chipping. It is so manifest that this is a matter of opinion that we do not pause to discuss it.

The circuit judge submitted the case to the jury upon the question of whether the defendant owed a duty to this plaintiff to warn him of the danger from the use of a hammer such as this in question. The instruction upon this point was as follows:

“You have heard the testimony, and it is for you to say, in the first place, as I say, if you believe that the hammer was in the same condition as it is now— If boys of 17, or boys of his age, have not sufficient experience to appreciate the danger which would arise from using a hammer of this description, then I think you may find— you should find — that it became the duty of Mr. Lewis to warn those who came into his employment of the danger which they might naturally apprehend. In other words, if a boy of 17 would not appreciate the fact that a hammer which is chipped would chip again, and that there was danger coming from the chipping of a hammer, then he should be told of it before, and instructed not to use a hammer of that description. If, however, it is a thing that he should apprehend, and that boys of his class would naturally apprehend, then it was obviously one of those risks, I think, which he took upon him in entering upon this employment; and it is for you to say whether he owed that duty to the boy, or whether he did not.”

We think this instruction sufficiently defined defendant’s duty in the case. The plaintiff contends that it was the duty of defendant to furnish safe tools and appliances. But we are of the opinion that the case comes within Wachsmuth v. Electric Crane Co., 118 Mich. 275 (76 N. W. 497), and that it must be held that the duty of inspection of these smaller tools is not a duty owing by the master to the workman, where, as in this case, it appears that the hammer was purchased from a reputable firm when bought, and that it was the property of a fellow workman. We think the instruction of the circuit judge ■sufficiently favorable to plaintiff.

A motion for a new trial was made, but it presented no ■questions requiring additional discussion. We think no ■error was committed in refusing a new trial.

The judgment will be affirmed, with costs.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    COMMISSIONER OF STATE LAND OFFICE v. AUDITOR GENERAL.
    1. Taxation — Cancellation of Tax Deeds — Power of Auditor General.
    The power to cancel tax deeds, conferred on the auditor general by section 98 of the tax law (1 Comp. Laws, § 8921), does not authorize him to take such action on his own motion, or on the motion of a stranger to the title.
    -2. Same — Deeds to State — Homestead Lands.
    Nor does such power extend to deeds executed by him to the State under the homestead provisions of the tax law.
    8. Same — Limitations—Validity of Statute.
    The provision of section 181 of Act No. 107, Pub. Acts 1899, limiting the right to attack the titles of existing homesteaders to six months after the act became operative, would seem to be regarded as valid.
    Petition by Edwin A. Wildey, commissioner of the State land office, for a writ of prohibition restraining Perry E. Powers, auditor general, from canceling certain tax deeds.
    Submitted February 11, 1902.
    (Calendar No. 19,024.)
    Writ granted June 24, 1902.

      Relator, the commissioner of the -State land office, asks the writ of prohibition to prohibit respondent, the auditor general, from canceling certain tax deeds. The suit is evidently a friendly one, to obtain a construction of certain provisions of the tax law. The lands described in the, petition, the deeds for which the respondent proposes to-cancel, were sold for delinquent taxes, and were deeded to the State in the year 1896, in accordance with section 127, Act No. 206, Pub. Acts 1893 (1 Comp. Laws, § 3949). This section reads as follows:
    “ Whenever it shall hereafter appear that any lands delinquent for taxes have been bid off to the State for a consecutive period of more than three years, and that no application has been made to redeem or purchase the same, it shall be the duty of the auditor general and the commissioner of the State land office, when requested so to do by the township board of the township wherein such delinquent lands are situated, to cause an examination of such lands to be made as soon as practicable, to ascertain their value and the cause of the nonpayment of taxes thereon; and if it shall appear that said lands are barren, swamp, or worthless lands, and have been abandoned by the owner, upon a certificate being filed by the examiner to that effect, the auditor general is hereby authorized to make a transfer by deed of the same to the State as to an individual, as provided in this act, which deed shall be recorded in the proper county, and a copy filed in the office of the commissioner of the State land office, and said commissioner shall thereafter hold said lands as State lands, subject to sale as hereinafter provided; and failure to pay the taxes or to redeem or purchase any lands sold for taxes and bid to the State for more than three consecutive years, as aforesaid, shall be, in all cases where such lands are not actually occupied, prima facie evidence that such lands are abandoned by the owner.”
    This section was amended by Act No. 107, Pub. Acts 1899, so as to read, in part, as follows:
    , “The determination of the auditor general and commissioner of the State land office in that regard shall be deemed to be conclusive as to the facts therein stated, unless suit is instituted to vacate the same within six months, as hereinafter provided. Within ninety days after such determination, the auditor general shall make a transfer by deed of all lands so determined by the auditor general and said commissioner of the State land office to come within the provisions of this section to the State of Michigan as to an individual, as provided in section seventy-two of this act, so far as said section is applicable. Said deed or deeds shall be delivered to the commissioner of the State land office, who, after having said deed or deeds recorded in the register of deeds office of the county where the lands are situated, shall file the same in his office. Upon the execution and delivery of said deed or deeds to the commissioner of the State land office, said commissioner shall hold said lands as State lands, subject to the provisions hereinafter contained. And no suit shall be instituted to vacate, set aside, or annul the said determination of the said auditor general and the commissioner of the State land office, made as aforesaid, unless instituted within six months after the determination aforesaid. Any person desiring to file a bill or institute a suit to vacate the findings of the auditor general and commissioner of the State land office, as provided in this section, shall first pay to the auditor general all delinquent taxes returned to the auditor general on the lands in question, together with all interests, costs, and charges, and shall purchase and pay for all bids and titles held by the State to such lands, by paying therefor the amount bid by the State, and all interest and legal charges thereon, as provided in section eighty-four of this act. The money so received by the auditor general shall be paid into the general fund of the State, and in case the determination of the auditor general and commissioner of the State land office should be set aside and held for naught, and the taxes, or any portion thereof,- shall be adjudged invalid for any of the reasons set forth in section seventy-six of this act, then in such case the auditor general shall return to the person entitled thereto such taxes, or any portion thereof, as shall be so adjudged invalid for the reasons aforesaid; and, in case the title is held valid, the money so received shall be divided between the State, county, and township pro rata, according to the taxes paid, the same as in other cases. Any suit instituted for the purpose of setting aside the determination aforesaid may be commenced in the circuit court of the county of Ingham. It is hereby made the duty of the -county clerks of the several counties of this State, on inquiries by the auditor general, to furnish to said auditor general a certificate showing whether or not any such suit is pending in the circuit court of the counties, as above referred to, relating to any lands described and referred to in the inquiry of the auditor general.”
    Section 131 is amended by the same act (No. 107), providing that:
    “In all cases where the lands have been taken as a homestead, * * * all actions of ejectment, or to recover possession of said lands, or to set aside the title of such homesteader, by any person, firm, or corporation claiming the original or government title, shall be commenced within six months after this act shall take effect, and not afterwards.”
    Section 98 of the tax law (1 Comp. Laws, § 3921). authorizing the auditor géneral to cancel deeds, is as follows :
    “ Whenever any lands returned to the office of the auditor general, or to the county treasurer during the life of the tax law of eighteen hundred ninety-one, shall have been sold on account of nonpayment of taxes thereon, if the auditor general shall discover, before a conveyance of said lands is executed and delivered:

      “First, that the land so sold was not subject to taxation at the date of the assessment of the taxes for which it was sold; or .

      “Second, that the taxes had been paid to the proper officer within the time limited by law for the payment or redemption thereof; or
    ‘ ‘ Third, that such sale was in contravention of any of the provisions of this act; or

      “"Fourth, that a certificate that no taxes were charged against said lands has been given by the proper officer within the time limited by law for the payment or redemption thereof ;—
    “The auditor general shall withhold a conveyance of such lands, and shall, on demand, cause the money paid therefor to be refunded to the purchaser, with interest thereon at eight per cent, per annum: Provided, that in the last-mentioned case the person in whose behalf such certificate was given shall, at the time of presenting such certificate to the auditor general, pay to the State treasurer, on the statement of the auditor general, all taxes and charges due to the State upon such land at the time such certificate was issued. If the discovery is not made until after the conveyance has been executed and delivered, a certificate of error may be issued in proper form for record; and the deed, if not recorded, shall be surrendered when the purchase money is refunded. If the deed has been recorded, the money shall be refunded on a recorded release from the holder of the tax deed.”
    Some of the descriptions were homesteaded before the act of 1899 took effect. As to some of the descriptions, the respondent proposes to cancel the deeds upon his own motion; as to others, he proposes to cancel them upon the motion of a stranger to the title; and as to a few of them, the original owners applied through their attorney, and asked the respondent to cancel the deeds.
    The following questions are presented for adjudication:
    1. Has the auditor general the power to cancel tax deeds or certificates of sale upon his own motion, or upon the motion of a stranger to the title ?
    2. Does the power conferred upon the auditor general to cancel deeds apply to deeds issued under the homestead provision of the tax law ?
    3. Has the statute of limitations run against the right of cancellation ?

      Benjamin F. Heckert, for relator.

      Horace M. Oren, Attorney General (Charles W. McGill, of counsel), for respondent.
   Grant, J.

(after stating the facts). 1. We think the tax law does, not confer upon the auditor general the right to proceed upon his own motion to withhold the conveyance of lands sold for taxes, or upon his own motion to proceed to cancel deeds. Thousands of acres of land in this State have been intentionally abandoned, and the payment of taxes intentionally neglected or refused. Owners are presumed, under the law, to know that taxes are imposed upon their lands. It is their duty, therefore, to look after their taxes and attend to their payment. If they fail to do so, the statute has wisely provided a limitation to their right to take proceedings to cancel the tax deed and set the proceedings aside. Under the contention of the respondent, he could absolutely set aside the running of the statute of limitations by his own voluntary act, ■when no one solicits his action. The statute clearly contemplates that somebody interested in the lands shall set the auditor general in motion in order to confer upon him the authority to act. No case is cited holding that the auditor general may proceed on his own motion to cancel deeds. The State and the parties interested are entitled to a hearing.

2. The right of the auditor general to cancel deeds under section 98, where the lands have been sold under section 84 of the tax law, is not disputed. Northrup v. Maneka, 126 Mich. 550 (85 N. W. 1128). The claim of the relator is that that power does not extend to lands which have been deeded to the State, and placed under the charge and control of the land office, as homestead lands. That question is now presented to the court for the first time. The statute (section 127) provides for an adjudication and determination by the auditor general and the commissioner of the State land office as to whether the lands have been abandoned, and their value. They are required to ascertain if the lands have been delinquent for taxes for five years or more; if they have been bid off to the State one or more times; if the time of redemption has expired; if no application has been made to pay, redeem, or purchase the same; and if no action is pending in the circuit court of the county where the land is situated to set aside the taxes, or to remove the cloud on the title occasioned thereby. If these things are found, the statute provides that.“the title to the State shall be deemed absolute in and to said lands.” The auditor general and commissioner of the State land office are further required to determine what lands so examined come within the provisions of this section, and then to record their determination in a book to be kept for that purpose. Pursuant to the determination of these two State officers, the auditor general then issues a deed to the State. The deeds are then delivered to the commissioner of the land office, whose duty it is to record them. The statute above quoted (section 127) then provides a way by which the owner of the land may proceed in the courts to test the validity of the finding of these officers. We think it was the clear intention of the legislature, in enacting this law, to put these lands, after the determination has been made by the auditor general and commissioner of the State land office, beyond the control of the auditor general, and to place the power to question their proceedings in the courts. All the cases cited in behalf of the respondent are cases where the lands have been sold under section 84, and the language used in those eases is applicable, and must be confined, to sales made under that section.

3. It is conceded by the respondent that no certificate of error can be legally issued by him against those lands which were homesteaded prior to the time Act No. 107 took effect, as the statutory limitation of six months had run before any proceeding was taken to set the deed aside. Similar statutes of limitation have been sustained in other jurisdictions. Meigs v. Roberts, 162 N. Y. 371 (56 N. E. 838, 76 Am. St. Rep. 322); People v. Turner, 145 N. Y. 451 (40 N. E. 400); Terry v. Anderson, 95 U. S. 628; Saranac Land & Timber Co. v. Comptroller of New York, 177 U. S. 318 (20 Sup. Ct. 642).

Under this disposal of the case it is unnecessary to pass upon the other provisions of the statute in regard to the limitation of the right to take proceedings to cancel deeds.

The writ of prohibition will issue, without costs.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.


author: Montgomery, J.

text:
    BRIGGS v. McKINLEY.
    Intoxicating Liquors — Approval op Bond — Gonolusiveness.
    The good-faith action of a village board of trustees in approving a liquor bond will not be reviewed by the courts under a claim that there was an insufficient investigation as to the pecuniary responsibility of the sureties, and a consequent error in judgment on the part of the board.

      Certiorari to Newaygo; Palmer, J.
    Submitted February 18, 1902.
    (Calendar No. 19,162.)
    Decided June 24, 1902.

      Mandamus by Milton H. Briggs and F. M. Jackson, trustees of the village of Grant, to compel Alex. J. McKinley, Owen Colligan, and William Hudson, also trustees of said village, to join with relators in rescinding the approval of a liquor bond. From an order denying the writ, relators bring certiorari.

    Affirmed.

      W. D. Fuller, for relators.

      S. D. Clay (George Luton, of counsel), for respondents.
   Montgomery, J.

This is certiorari to review the action of the circuit judge in refusing a writ of mandamus. The relators and respondents comprise the board of trustees of the village of Grant, Newaygo county. The petition avers that on the 29th of April’ 1901, at a special meeting held by the board, there were present the president pro tem., Briggs, McKinley, Jackson, Colligan, and Hudson, comprising the two relators and the three respondents; that at this meeting the retail liquor bond of Ors Bisard was presented for approval; that the bond was approved by a majority vote, the respondents voting in the affirmative, and the relators in the negative; that the certificate of approval was duly indorsed, the bond returned, and filed with the county treasurer, the tax paid, and the receipt obtained; and that on May 1st said Ors Bisard entered upon the business of a retail liquor dealer. The petition sets out that, when the bond was presented for approval, a motion was made to delay proceedings until some investigation was made as to the property owned by the sureties, but that this motion was laid upon the table. The petition also avers the pecuniary irresponsibility of the sureties, and asks that the respondents be required to reconvene, and reconsider the vote by which the bond was approved. Other facts are set out in the petition, — as that one of the sureties is the real principal; but, as this fact was not made to appear to the board at the time the action was taken, we think it is obvious that it cannot be an important fact in this proceeding.

This is the first time an application has been made to set aside the action of a board approving a bond. The answer to the petition shows that the respondents acted in good faith in approving the bond. The most that can be claimed is that they erred in judgment, and that they did not give such investigation as to the property owned by the sureties as the relators conceive to be essential, and as, indeed, might have been wise. It would certainly be anomalous if the courts, in the absence of fraud on the part of municipal authorities, in a case where they have jurisdiction to determine a question of fact, and where it has been determined, and acted upon by third parties, should intervene to control their action, or set it aside, and compel new action to be taken. The law plainly commits to the common council of the village the authority to act upon such applications, to approve or refuse to approve a bond. When action has once been taken in good faith, it is not open to review by the courts. Bailey v. Van Buren Circuit Judge, 128 Mich. 627 (87 N. W. 890).

The order of the circuit judge is affirmed.

Hooker, C. J., and Moore, J., concurred. Long, J., did not sit. Grant, J., took no part in the decision.


author: Moore, J.

text:
    PEOPLE v. HULBERT.
    1. Riparian Owners — Relative Rights.
    The rights of the several riparian proprietors on a stream, oían inland lake are equal, each being entitled to a reasonable use of the water, though such use may, to some extent, prejudice the other proprietors by impairing the quality of the water or diminishing its quantity.
    2. Same — Bathing—City Water Supply.
    A riparian owner on a lake has a right to bathe therein, as against a city drawing its water supply from the lake under . a like ownership.
    3. Same — Police Power.
    And it is not within the police power of the State to prohibit the exercise of such right.
    Exceptions before judgment from Calhoun; Smith, J.
    Submitted February 21, 1902.
    (Docket No. 128.)
    Decided June 24, 1902.
    Steven S. Hulbert was convicted of polluting the source of the water supply of the city of Battle Creek by bathing in Goguac Lake, in violation of section 26 of Act No. 428, Local Acts 1887.
    Reversed.

      8tev8n S. Hulbert (George W. Mechem, of counsel), in pro. per.

      Horace M. Oren} Attorney Genetal, and Jesse M. Hatch, Prosecuting Attorney (0. 8. Clark, of counsel), for the people.
   Moore, J.

Goguac Lake is a natural body of private water wholly within the township of Battle Creek, which township adjoins the city of Battle Creek. It has an area of about 360 acres, and varies in depth from nothing at the shore line, to 80 feet. The shore line of the lake is about 5 miles in all, and at the time of the alleged offense was owned as follows: About 200 feet by the city, upon which is its pumping station, and the rest of the 5' miles is owned and occupied by farmers, pleasure resort proprietors, and summer cottagers, the latter holding, some by fee, and others by lease from the farmer owners. At the north end of the lake is a pleasure resort, and scattered around the lake shore are between 40 and 50 cottages, occupied during the summer season by the respective owners, or persons to whom they rent. The lake is accessible from the city by a good highway, a fine bicycle path, and an electric road. It is the only nearby pleasure resort for the citizens of Battle Creek. There are a large number of rowboats, sailboats, and .several steamers upon the lake. The riparian uses to which the various owners have put the Water are all the uses which farmers and summer cottagers would naturally exercise, viz., fishing, wading, bathing, swimming, washing sheep, watering' cattle, pigs, and horses, washing vehicles and clothing, cutting ice, boating, sailing, etc. In the summer of 1884 the respondent first occupied premises at the lake. In 1884, 1885, and 1886 he occupied tents within a few feet of where he erected a cottage in 1887, since which time he has continuously occupied said cottage. Beginning with 1884, he has occupied the premises for the camping season each year, continuously, except two, and every season has entered the water to swim. His investment in cottage and appurtenances is several hundred dollars.

In 1886 the city proposed a system of waterworks, and at some time thereafter determined to take the city water supply from Goguac Lake. For that purpose the city bought a piece of land fronting on the lake at its northerly end, having a shore frontage of about 200 feet, and erected thereon a pumping station. The system is to take the water from the lake by means of an inlet pipe 16 inches in diameter, which runs into the lake. The water is pumped to a standpipe, which is upon a rise of ground a short distance from the lake, and thence is distributed through pipes of 4 to 16 inches within the city-limits, the piping now amounting to between 30 and 40 miles. The water is used by the city, and sold to the people, and is the only water system. The lake is about 1\ miles long, and is fed by subterranean springs. There is no outlet except the intake pipe. From the cottage of the respondent, by water, to the intake pipe, is about three-quarters of a mile. Quite early in the use of the lake for municipal purposes, the city pumped out so much water as to lower the lake. Litigation resulted, and the city then for certain months in the year turned into the lake the water from Minges brook, so that the water is not now lowered by the city, but the effect of turning in the water from the brook is to make the water harder than it was before.

The city, although given ample power by the charter to condemn lands and easements for a water supply upon paying due compensation for the rights taken, did not exercise that right, but, because it was a riparian proprietor, claimed the right to use the water of the lake, and that the other riparian proprietors must do nothing having a tendency to pollute the waters of the lake. The respondent, having first notified the board of public works óf his intention to do so, made an entry into the waters of the lake on July 25, 189?, by wading on his own leased land under water, and swimming in the water flowing over said land. This he did without malice, and to afford a test case. He maintained that the difference between the exercise of the ancient common-law riparian right of bathing and swimming, and those of washing sheep, watering cattle and horses, running a water-wheel for a mill, etc., was a difference only in kind and degree, and that all were common-law rights incident and appurtenant to the ownership dr lawful occupation of land upon an inland lake in this State. It was the claim of the people that this act of swimming polluted the source of the water supply, and was criminal. The respondent was informed against, a trial was had, and the charge of the court was such that a conviction followed. The case is brought here by appeal.

Upon the trial several expert witnesses were sworn, who testified that germs might have been thrown off the body of the respondent while swimming, which would produce disease, and that some of those germs might reach the intake pipe, and through it the consumers of the water, and be a source of ill health. It is not shown any such germs ever did reach the intake pipe, or that any illness in Battle Creek could be traced to the use of the water taken from this lake.

A great many interesting questions are raised by the record and presented in the briefs of counsel, but, in our view of the law, it will be unnecessary to discuss many of-them. The first question calling for consideration is, Was the act of respondent unlawful ? It is a matter of common knowledge that in this State the riparian owners whose lands border upon lakes, and through whose lands streams run, are in the habit of using the streams and lakes by allowing their domestic animals to drink therein, and by drawing therefrom what water may be needed for domestic purposes; and themselves and their families resort to the water of the streams and lakes for the purpose of bathing at suitable seasons of the year. It is also known that, as a rule, the supply of drinking and cooking water is obtained from springs or wells. Will the fact that a lower riparian proprieter decides to use the water of the stream or lake for drinking and cooking purposes make a reasonable use of the water by the upper riparian owners for the purposes of watering cattle and bathing purposes unlawful because to do so has a tendency to make the water less desirable for drinking and cooking purposes? Can the upper riparian proprietors be deprived of such reasonable and ordinary use when the lower proprietor is a city having a large population, by invoking the police power, and without compensation ? It will readily be seen these are very important questions. The diligence of able counsel has failed to call our attention to a case on all fours with the one at bar, but the principles involved are not new.

In Wood v. Waud, 3 Exch. 748, Pollock, C. B., speaking for the court, said:

“We agree with the learned counsel for the plaintiffs in his exposition of the principles which regulate the law as to natural streams, which are fully considered, and 'placed on their right footing, in the case of Mason v. Hill, 3 Barn. & Adol. 304; Id., 5 Barn. & Adol. 1; and the authorities there cited. Flowing water, as well as light and air, are in one sense ‘publici juris.’ They are a boon from Providence to all, and differ only in their mode of enjoyment. Light and air are diffused in all directions, flowing water in some. When property was established, each one had the right to enjoy the light and air diffused over, and the water flowing through, the portion of soil belonging to him. The property in the water itself was not in the proprietor of the land through which it passes, but only the use of it, as it passes along, for the enjoyment of his property, and as incidental to it. The law is laid down by Chancellor Kent, in 3 Comm. 439, thus: ‘ Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water. * * * He has no property in the water itself, but a simple usufruct as it passes along.’ ‘Aqua currit et debet currerej is the language of the law; and Mr. Justice Story, in Tyler v. Wilkinson, 4 Mason, 397 (Fed. Cas. No. 14,312), cited in Gale & W. Easem. p. 131, lays down the same law. In the judgment of Lord Chief Justice Tindal in the case of Acton v. Blundell, 12 Mees. & W. 324, he treats the right to waters flowing on the surface as arising from the acquiescence of neighboring owners; though he also quotes the judgment of Mr. Justice Story, above referred to, which treats the right as an incident to property; for Mr. Justice Story says: ‘ The natural stream, existing by the bounty of Providence for the benefit of the land through which it flows, is an incident annexed by operation of the law to the land itself.’ Mr. Justice Whitlock, also, in Sury v. Pigot, Poph. 169, and Crew, C. J., Id., 172, and Lee, C. J., in Brown v. Best, 1 Wils. 174, treat the right as arising ex jure naturaej and consequently it is not extinguished, as an.easement in alieno solo would be, by unity. * * *
‘ ‘ In considering this question, it is to be assumed that the plaintiffs’ right is established to the use of the water. It is said that the true rule on this subject is laid down by Chancellor Kent (3 Comm. 439, 440) that streams are meant for the use of men, and that it would be unreasonable, and contrary to the universal consent of mankind, to debar each riparian proprietor from the application of the water to domestic, agricultural, or* manufacturing purposes, provided the use of it be made so as to work no material injury or annoyance to his neighbor; and though there will, no doubt, be, in the exercise of a proper use of water, some evaporation and decrease of it, some variation in the weight and velocity of the current, but the maxim De minimis non curat lex’ applies, and a right of action by the proprietor below would not necessarily flow from such use; it would depend on the nature and extent of the injury, and the manner of using the water.”

In Embrey v. Owen, 6 Exch. 353, Baron Parke, speaking for the court, said:

“The law as to flowing water is now put on its right footing by a series of cases beginning with that of Wright v. Howard, 1 Sim. & S. 190, followed by Mason v. Hill, 3 Barn. & Adol. 304; Id., 5 Barn. & Adol. 1; and ending with that of Wood v. Waud, 3 Exch. 748; and is fully settled in the American courts. See 3 Kent, Comm. (6th Ed.) lect., 52, pp. 439, 445. The right to have the stream to flow in its natural state, without diminution or alteration, is an incident to the property in the land through which it passes. But flowing water ispublici juris; not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only: That all may reasonably use it who have a right of access to it; that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. See Mason v. Hill, 5 Barn. & Adol. 24. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it.
“This right to the benefit and advantage of the water flowing past his land is not an absolute and exclusive right to the flow of all the water in its natural state. If it were, the argument of the learned counsel that every abstraction of it would give a cause of action would be irrefragable. But it is a right only to the flow of the water, and the enjoyment of it, subject to the similar rights of all the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence. * * *
“ ‘ The owner must so use and apply the water as to work no material injury or annoyance to his neighbor below him, who has ■•an equal right to the subsequent use of the same water. Nor can he, by dams or any obstruction, cause the water injuriously to overflow the grounds and springs of his neighbor above him. Streams ■of water are intended for the use and comfort of man; and it would be unreasonable, and contrary to the universal sense of mankind, to debar every riparian proprietor from the application of the water to domestic, agricultural, and manufacturing purposes, provided the use of it be made under the limitations which have been mentioned ; and there will, no doubt, inevitably be, in the exercise of a perfect right to the use of the water, some evaporation and decrease of it, and some variations in the weight and velocity of the current. But “de minimis non curat lex,” and a right of action by the proprietor below would not necessarily flow from such consequences) but would depend upon the nature and extent of the complaint or injury, and the manner of using the water. All that the law requires of the party by or over whose land a stream passes is that he should use the water in a reasonable manner, and so as not to destroy, or render useless, or materially diminish or affect, the application of the water by the proprietors above or below on the stream.’
“* * * On the other hand, one’s common sense would be shocked by supposing that a riparian owner could not dip a watering-pot into the stream in order to water his garden, or allow his family or his cattle to drink it. It is entirely a question of degree, and it is very difficult— indeed, impossible' — to define precisely the limits which separate the reasonable and permitted use of the stream from its wrongful application; but there is often no difficulty in deciding whether a particular case falls within the permitted limits or not.”

In Merrifield v. Lombard, 13 Allen, 16 (90 Am. Dec. 172), it is said:

“Any diversion or obstruction of the water which substantially diminishes the volume of the stream, so that it does not flow ut currere solebat, or which defiles and corrupts it to such a degree as essentially to impair its purity, and prevent the use of it for any of the reasonable and proper purposes to which running water is usually applied, —such as irrigation, the propulsion of machinery, or consumption for domestic use, — is an infringement of the right of other owners of land through which a watercourse runs, and creates a nuisance for which those thereby injured are entitled to a remedy. An injury to the 'purity or quality of the water, to the detriment of other riparian owners, constitutes, in legal effect, a wrong and an invasion of private right, in like manner as a permanent obstruction or diversion of the water. It tends directly to impair and destroy the use of the stream by others for reasonable and proper purposes. Mason v. Hill, 2 Nev. & M. 747, 5 Barn. & Adol. 1; Wood v. Waud, 13 Jur. 472, 3 Exch. 748; 3 Kent, Comm. (6th. Ed.) 439; Ang. Water-Courses, § 136.”

In Sanderson v. Coal Co., 86 Pa. St. 401 (27 Am. Rep. 711), it is said:

“In an elaborate and carefully considered opinion in Mason v. Hill, 5 Barn. & Adol. 1, Denman, C. J., held that the possessor of land through which a natural stream runs has the right to the advantage of that stream flowing in its natural course, not inconsistent with a similar right in the proprietors of the land above and below; and that neither can any proprietor above diminish the quantity or injure the quality of the water, nor can any proprietor below throw back the water without his license or grant. It was one of the features of that case that the water which the defendant had the right to use, subject to the duty of returning it, was heated when it was returned to the stream, and the jury had assessed damages for that. The chief justice said, in entering judgment: ‘As to the right to recover for the injury sustained by the water being returned in a heated state, there can be no question.’
“In Wood v. Sutcliffe, 16 Jur. 75, 8 Eng. Law & Eq. 217, an injunction was granted to restrain the defendant, against whom a recovery had been had at law, from pouring dye wares, dye liquors, madder, indigo, or potash into a channel that connected his dye works with a stream called the ‘ Bowling Beck,’on which, below the works, the cotton mill of the plaintiffs was situated, and in the use of the water of which they claimed prescriptive rights. ‘ I am satisfied from the evidence,’ the vice-chancellor remarked in the course of his opinion, ‘that to some considerable extent the pollution of this stream is inevitable, and that no court of law or court of equity, nor all the courts in the world, except there were a power of removing all that mass of human beings which now congregate about its banks, ever could restore it to the state in which it once was. But still it does not follow, because there be a certain degree of pollution, which cannot be very accurately measured, and which is inevitable, that, therefore, everybody has a right to pollute the stream by pouring in immense quantities of filth and pollution from his own works, to make it ten thousand times worse.’ ”

In Greene v. Nunnemacher, 3G Wis. 50; the following language is used:

“If the plaintiff is a riparian proprietor, he has the undoubted right to enjoy the use of the waters of the river for his cattle and for domestic purposes without having their purity affected or their quality destroyed by the-upper proprietor. * * * And, if this is really the situation of his premises, it needs no argument to show that, so far as he is concerned, he has the right to insist that the defendants shall not foul and corrupt the waters by discharges and slops from their distillery and hog and cattle yards, so as to render the waters unfit for agricultural and’ domestic purposes.”

In Dwight Printing Co. v. City of Boston, 122 Mass. 583, it is said:

“The riparian proprietors higher up still retain all their common-law rights in the river, so far as they are not inconsistent with the use defined in the statute. They certainly are not prohibited from drawing water from the river for domestic purposes, or from watering cattle in it, or from cutting ice.”

In Strobel v. Salt Co., 164 N. Y. 303 (58 N. E. 142, 51 L. R. A. 687, 79 Am. St. Rep. 643), it is said:

“There is nothing about the case now before us to take it out of the general rules governing the rights of riparian owners. Those rules are well established in this State, and, so far as material to the case before us, are, in the absence of modification by grant or prescription, as follows : A riparian owner is entitled to a reasonable use of the water flowing by his premises in a natural stream, as an incident to his ownership of the soil, and to have it transmitted to him without sensible alteration in quality or unreasonable diminution in quantity. While he does not own the running 'water, he has the right to a reasonable use of it as it passes by his land: As all other owners upon the same stream have the same right, the right of no' one is absolute, but is qualified by tbe right of the others to have the stream substantially preserved in its natural size, flow, and purity, and to protection against material diversion or pollution. This is the common right of all, which must not be interfered with by any. The use by each must, therefore, be consistent with the rights of the others, and the maxim of ‘ sic utere tuo ' observed by all. The rule of the ancient common law is still in force, ‘Aqua currit et debet currere, ut currere solebat.’ Consumption by watering cattle, temporary detention by dams in order to run machinery, irrigation (when not out of proportion to the size of the stream), and some other familiar uses, although in fact a diversion of the water involving some loss, are not regarded as an unlawful diversion, but are allowed &¡\ a necessary incident to the use, in order to effect the highest average benefit to all the riparian owners. As the enjoyment of each must be .according to his opportunity, and the upper owner has the first chance, the lower owners must submit to such loss as is caused by reasonable use. Surrounding circumstances, such as the size and velocity of the stream, the usage of the country, the extent of the injury, convenience in doing business, and the indispensable public necessity of cities and villages for drainage, are also taken into con.sideration; so that a use which, under certain circumstances, is held reasonable, under different circumstances would be held unreasonable. It is also material sometimes to ascertain which party first erected his works and began to appropriate the water. Clinton v. Myers, 46 N. Y. 511 (7 Am. Rep. 373); New York Rubber Co. v. Rothery, 132 N. Y. 293 (28 Am. St. Rep. 575, 30 N. E. 841); Smith v. City of Brooklyn, 160 N. Y. 357 (54 N. E. 787, 45 L. R. A. 664); Prentice v. Geiger, 74 N. Y. 341; Bullard v. Manufacturing Co., 77 N. Y. 525; Merritt v. Brinkerhoff, 17 Johns. 306 (8 Am. Dec. 404); Crooker v. Bragg, 10 Wend. 260 (25 Am. Dec. 555); Arnold v. Foot, 12 Wend. 330; Tyler v. Wilkinson, 4 Mason, 397 (Fed. Cas. .No. 14,312); Columbus, etc., Iron Co. v. Tucker, 48 Ohio St. 41 (29 Am. St. Rep. 528, 26 N. E. 630, 12 L. R. A. 577); Beach v. Zinc Co., 54 N. J. Eq. 65 (33 Atl. 286); St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642; Crossley & Sons v. Lightowler, L. R. 3 Eq. Cas. 279, L. R. 2 Ch. App. 478; Pennington v. Coal Co., L. R. 5 Ch. Div. 769; Attorney General v. Lunatic Asylum, L. R. 4 Ch. App. 146; Hodgkinson v. Ennor, 4 Best & S. 229; 3 Kent, Comm. 439; Gould, Waters, § 219; Higgins, Water-Courses, 132;, Washb. Easem. (4th Ed.) 215; 1 Wood, Nuis. (3d Ed.) §§ 364, 427.
“The question of reasonable use is generally a question of fact; but whether the undisputed facts, and the necessary inferences therefrom, establish an unreasonable use, is a question of law. When the diversion or pollution (which is treated as a form of diversion) is caused by a new and extraordinary method of using the water, hitherto unknown in the State, and such method not only permanently diverts a large quantity of water from the stream, but also renders the rest so salt at times that cattle will not drink it unless forced to by necessity, fish are destroyed in great numbers, vegetation is killed, and machinery rusted, such use, as a matter of law, is unreasonable, and entitles the lower riparian owner to relief. Where the natural and necessary result of the place selected and the method adopted by an upper riparian owner in the conduct of his business is to cause material injury to the property of an owner below, a court of equity will exercise its power to restrain on account of the inadequacy of the remedy at law, and in order to prevent a multiplicity of suits. The lower riparian owners are entitled to a fair participation in the use of the water, and their rights cannot be cut down by-the convenience or necessity of the defendant’s business. ‘ The necessities of one man’s business cannot be the standard of another’s rights in a thing which belongs to both.’* Wheatley v. Chrisman, 24 Pa. St. 298 (64 Am. Dec. 657). While the courts will not overlook the needs of important manufacturing interests, nor hamper them for trifling causes, they will not permit substantial injury to neighboring property, with a small but long-established business, for the purpose of enabling a new and great industry to flourish. They will not change the law relating to the ownership and use of property in order to accommodate a great business enterprise. According to the old and familiar rule, every man must so use his own property as not to injure that of his neighbor ; and the fact that he has invested much money and employs many men in carrying on a lawful and useful business upon his own land does not change the rule, nor permit him to permanently prevent a material portion of the water of a natural stream from flowing over the land of a lower riparian owner, or to so pollute the rest of the stream as to render it unfit for ordinary use.”

In Trevett v. Prison Ass’n, 98 Va. 332 (36 S. E. 373, 50 L. R. A. 564, 81 Am. St. Rep. 727), the following language is used:

“In 1 Wood, Nuis. (3d Ed.) § 427, it is said:
“ ‘The right of a riparian owner to have the water of a stream come to him in its natural purity is as well recognized as the right to have it flow to his land in its usual flow and volume. But in reference to this, as with the air, it is not every interference with the water that imparts impurities thereto that is actionable, but only such as impart to the water such impurities as substantially impair its value for the ordinary purposes of life, and render it measure-ably unfit for domestic purposes; or such as causes unwholesome or offensive vapors or odors to arise from the water, and thus impairs the comfortable or beneficial enjoyment of property in its vicinity; or such as, while producing no actual sensible effect upon the water, are yet of a character calculated to disgust the senses, such as the deposit of the carcasses of dead animals therein, or the erection of privies over a stream, or any other use calculated to produce nausea or disgust in those using the water for the ordinary purposes of life, or such as impair its value for manufacturing purposes.’
“The great principle upon which the law, as thus stated, rests, is that every man must use his own property so as not to injure that of another. It is true, as urged by counsel for defendant in error, that the operation of this principle is qualified by another maxim, founded in natural law, that he who exercises only his own legal rights injures no one. The motive, good or bad, which influenced the action complained of, is generally of no importance whatever, for it is well stated by an eminent writer upon this subject that ‘whatever one has a right to do, another can have no right to complain of.’ Cooley, Torts, § 6, p. 630. If, therefore, a lawful act is done in a lawful manner, though another may be injured by it, the law affords no remedy. It is damnum absque injuria.
“It was said by the court in Merrifield v. City of Worcester, 110 Mass. 219 (14 Am. Rep. 592) :
“ ‘Cultivating and fertilizing the lands bordering on the stream, and in which are its sources, their occupation by farmhouses and other erections, will unavoidably cause impurities to be carried into the stream. As the lands are subdivided, and their occupation and use become multifarious, these causes will be rendered more operative, and their effects more perceptible. The water may thus be rendered unfit for many uses for which it had before been suitable; but, so far as that condition results only from reasonable use of the stream in accordance with the common right, the lower riparian proprietor has no remedy. When the population becomes dense, and towns or villages gather along its banks, the stream naturally and necessarily suffers still greater deterioration. Roads and streets crossing it, or running by its side, with their gutters and sluices dischai’ging into it their surface water collected from over large spaces, and carrying with it in suspension the loose and light material that is thus swept off, are abundant sources of impurity, against which the law affords no redress by action.’
“* * * Tracing the law from the time of Lord Coke to more recent times, the court [in Mayor, etc., of Baltimore v. Manufacturing Co., 59 Md. 96], speaking through Judge Alvey, declares that:
“ ‘All common-law authorities agree that a riparian owner has the right to the natural stream of water flowing by or through his land in its ordinary, natural state, both as to its quantity and quality, as incident to the right to the land on or through which the water-course runs. * * * If, therefore,’ said the court, ‘the defendants, being upper riparian proprietors, and such entitled to the ordinary use of the water, including the right to apply it in a reasonable way to purposes of trade and manufacture, are using the water of the stream in an unreasonable manner, and have defiled the same in such manner and to such an extent as to operate an actual invasion of the rights of the complainants, the latter are entitled to redress by action at law, and, in case the nuisance be continued, to summary relief by injunction. * * *
“ ‘What nature and extent of pollution of the stream will call for the active interference of the court is not in all cases easy to define. It is not every impurity imparted to the water, however small in degree, that will be the subject of an injunction. All running streams are, to a certain extent, polluted; and especially are they so when they flow through populous regions of country, and the waters are utilized for mechanical and manufacturing purposes. The washings of the manured and cultivated fields, and the natural drainage of the country, of necessity bring many impurities to the stream; but these and the like sources of pollution cannot ordinarily be restrained by the court. * * * Therefore, when we speak of the right of each riparian proprietor to have the water of a natural Stream flow through his land in its natural purity, those descriptive terms must be understood in a comparative sense, as no proprietor does receive, nor can he reasonably expect to receive, the water in a state of entire purity. But any use that materially fouls and adulterates the water, or the deposit or discharge therein of any filthy or noxious substance that so far affects the water as to impair its value for the ordinary purposes of life, will be deemed a violation of the rights of the lower riparian proprietor, and for which he will he entitled to redress. Anything that renders the water less wholesome than when in its ordinary natural state, or which renders it offensive to taste or smell, or that is naturally calculated to excite disgust in those using the water for the ordinary purposes of life, will constitute a nuisance, and for the restraint of which a court of equity will interpose.’ ”

In Gehlen Bros. v. Knorr, 101 Iowa, 700 (70 N. W. 757, 36 L. R. A. 697, 63 Am. St. Rep. 416), it is said:

“We need only consider, then, what the law is as to the rights of riparian owners to the use of the waters of a nonnavigable stream for artificial purposes. Some general propositions may well be stated. The law is that as to such use, and in the absence of superior rights acquired by license, grant, or prescription, the rights of such proprietors in the water of the stream are equal. Willis v. City of Perry, 92 Iowa, 297 (60 N. W. 727, 26 L. R. A. 124). It follows, therefore, that the defendants had the right to use the water reasonably, having reference to plaintiffs’ rights therein. Washb. Easem. p. 379. Broadly stated, the general rule is that the owner of the land through which a stream of water runs has a right to have it flow over his land in the natural channel, undiminished in quantity, and unimpaired in quality, except in so far as diminution or contamination is inseparable from a reasonable use of such water. Willis v. City of Perry, supra; Ferguson v. Manufacturing Co., 77 Iowa, 578 (42 N. W. 448, 14 Am. St. Rep. 319); Spence v. McDonough, 77 Iowa, 462 (42 N. W. 371); 28 Am. & Eng. Enc. Law, p. 948; Elliot v. Railroad Co., 10 Cush. 191 (57 Am. Dec. 85, notes); Moulton v. Water Co., 137 Mass. 163; Garwood v. Railroad Co., 83 N. Y. 400 (38 Am. Rep. 452); Brookville, etc., Hydraulic Co. v. Butler, 91 Ind. 138 (46 Am. Rep. 580); Heilbron v. Canal Co., 75 Cal. 426 (17 Pac. 535, 7 Am. St. Rep. 183); Dumont v. Kellogg, 29 Mich. 420 (18 Am. Rep. 102); Union Mining Co. v. Dangberg, 2 Sawy. 450 (Fed. Cas. No. 14,370); Tyler v. Wilkinson, 4 Mason, 397 (Fed. Cas. No. 14,312); Bullard v. Manufacturing Co., 77 N. Y. 530; Palmer v. Mulligan, 3 Caines, 307 (2 Am. Dec. 270); Davis v. Getchell, 50 Me. 602 (79 Am. Dec. 636, note); Wadsworth v. Tillotson, 15 Conn. 366 (39 Am. Dec. 391); Haskins v. Haskins, 9 Gray, 390; Snow v. Parsons, 28 Vt. 459 (67 Am. Dec. 723); City of Springfield v. Harris, 4 Allen, 494 (81 Am. Dec. 715); Red River Roller Mills v. Wright, 30 Minn. 249 (15 N. W. 167, 44 Am. Rep. 194). No statement can be made as to wbat is such reasonable use which will, without variation or qualification, apply to the facts of every case. Butin determining whether a use is l’easonable we must consider what the use is for; its extent, duration, necessity, and its application; the nature and size of the stream, and the .several uses to which it is put; the extent of the injury to the one proprietor and of the benefit to the other; and all other facts which may bear upon the reasonableness of the use. Red River Roller Mills v. Wright, 30 Minn. 249 (15 N. W. 167, 44 Am. Rep. 194), and cases cited; Washb. Easem. p. 379.
“Now, while one riparian proprietor may not divert the water of a stream so as to deprive a lower proprietor on the same stream of the benefit thereof, such upper proprietor may reasonably detain the water for proper purposes. Washb. Easem. p. 380; Brookville, etc., Hydraulic Co. v. Butler, supra; 28 Am. & Eng. Enc. Law, p. 955; Gould, Waters, § 213; Ang. Water-Courses, §§ 90-96; Gillett v. Johnson, 30 Conn. 180. The doctrine that such use by the upper proprietor may result in diminishing the quantity of water which will go down the stream, and may affect the current by retarding the flow to a reasonable extent, and still be consistent with the existence of a common right, was early held in this country, and has been constantly adhered to. Tyler v. Wilkinson, supra; Dumont v. Kellogg, supra; Bullard v. Manufacturing Co., supra; Eidemiller Ice Co. v. Guthrie, 42 Neb. 238 (60 N. W. 717, 28 L. R. A. 581); Gould, Waters, § 191; Palmer v. Mulligan, supra; Davis v. Getchell, supra; Van Hoesen v. Coventry, 10 Barb. 518; Oregon Iron Co. v. Trullenger, 3 Or. 1; 3 Kent, Comm. 439; Keeney & Wood Manfg. Co. v. Union Manfg. Co., 39 Conn. 577; Timm v. Bear, 29 Wis. 254; Whaler v. Ahl, 29 Pa. St. 98; Gould v. Boston Duck Co., 13 Gray, 442. If the general rule that each riparian proprietor is entitled to the flow of the stream according to its natural course, without interruption or diminution, should be strictly adhered to, it would result in a virtual abrogation of the well-settled doctrine that the rights of all proprietors of the stream are equal, and would ‘ preclude the best use of flowing waters in most cases; and, where power is desired, the rule must yield to the necessity of gathering the water into reservoirs. It is lawful to do this where it is done in good faith, for a useful purpose, and with as little interference with the rights of other proprietors as is reasonably practicable under the circumstances.’ Cooley, Torts (1st Ed.), p. 584; Tyler v. Wilkinson, supra. In Dumont v. Kellogg, supra, it was held, in an action by a mill proprietor against one having a mill and dam above him on the same'stream, for damages caused by detention of the water, that it could not be said that such upper proprietor had no right to use the water to the prejudice of such lower proprietor; nor could it be held that such upper proprietor could not lawfully divert any of the water which would otherwise flow down the stream. The court said the real question was ‘ whether, under all the circumstances of the case, the use of the water by one is reasonable and consistent with a correspondent enjoyment of right by the other.’,”

In Dumont v. Kellogg, 29 Mich. 420 (18 Am. Rep. 102), Justice Cooley, speaking for the court, said:

‘ ‘ But as between two proprietors, neither of whom has acquired superior rights to the other, it cannot be said that one ‘ has no right to use the water to the prejudice of the proprietor below him,’ or that he cannot lawfully ‘ diminish the quantity which would descend to the proprietor below,’ or that ‘he must so use the water as not materially to affect the application of the water below, or materially to diminish its quantity.’ Such a rule would be, in effect, this: That the lower proprietor must be allowed the enjoyment of his full common-law rights as such, not diminished, restrained, or in any manner limited or qualified by the rights of the upper proprietor, and must receive the water in its natural state, as if no proprietorship above him existed. Such a rule could not be the law so long as equality of right between the several proprietors was recognized, for it is manifest it would give to the lower proprietor superior advantages over the upper, and in many cases give him in effect a monopoly of the stream,
“ Cases may unquestionably be found in which the rule of law is laid down as broadly as it was given by the circuit judge in this case, but an examination of them will show either that the facts were essentially different, or that the genera] language was qualified by the context. Thus the language employed in the first instruction as above given seems to have been quoted from Lord Tenterden in Mason v. Hill, 3 Barn. & Adol. 312. But there it had reference to a case of diversion of water, and was strictly accurate and appropriate. The same language substantially is made use of in Twiss v. Baldwin, 9 Conn. 291; Wadsworth v. Tillotson, 15 Conn. 373 (39 Am. Dec. 391); Arnold v. Foot, 12 Wend. 331; and probably in many other cases; and is adopted by Chancellor Kent in his Commentaries (volume 3, p. 439). See, also, Bealey v. Shaw, 6 East, 208; Agawam Canal Co. v. Edwards, 36 Conn. 497; Williams v. Morland, 2 Barn. & C. 913; Mason v. Hill, 5 Barn. & Adol. 1; Tillotson v. Smith, 32 N. H. 95 (64 Am. Dec. 355). But, as between different proprietors on the same stream, the right of each qualifies that of the other, and the question always is, not merely whether the lower proprietor suffers damage by the use of the water above him, nor whether the quantity flowing on is diminished by the use, but whether, under all the circumstances of the case, the use of the water by one is reasonable and consistent with a correspondent enjoyment of right by the other.
“ ‘Each proprietor is entitled to such use of the stream so far as it is reasonable, conformable to the usages and wants of the community, and having regard to the progress of improvement in hydraulic works, and not inconsistent with a like reasonable use by the other proprietors of land on the same stream above and below,’ Shaw, C. J., in Cary v. Daniels, 8 Metc. (Mass.) 476 (41 Am. Dec. 532).
“ ‘The common use of the water of a stream by persons having mills above is frequently, if not generally, attended with damage and loss to the mills below; but that is incident to that common use, and for the most part unavoidable. If the injury is trivial, the law will not afford redress, because every person who builds a mill does it subject to this contingency. The person owning an upper mill on the same stream has a lawful right to use the water, and may apply it in order to work his mills to the best advantage, subject, however, to this limitation: That if, in the exercise of this right, and in consequence of it, the mills lower down the stream are rendered useless and unproductive, the law in that case will interpose and limit this common right so that the owners of the lower mills shall enjoy |a fair participation.’ Woodworth, J., in Merritt v. Brinkerhoff, 17 Johns. 321 (8 Am. Dec. 404).
“It is a fair participation and a reasonable use by each that the law seeks to protect. Such interruption in the flow ‘as is necessary and unavoidable by the reasonable and proper use of the mill privilege above’ cannot be the subject of an action. Chandler v. Howland, 7 Gray, 350 (66 Am. Dec. 487). And see Embrey v. Owen, 6 Exch. 353; Hetrich v. Deachler, 6 Pa. St. 32; Hartzall v. Sill, 12 Pa. St. 248; Pitts v. Lancaster Mills, 13 Metc. (Mass.) 156; Bliss v. Kennedy, 43 Ill. 68.”

It is very clear from these cases that the lower proprietor has no superior right to the upper one, and may not say to him that, because the lower proprietor wants to use the water for drinking purposes only, the upper proprietor may not use the water for any other purpose. Each proprietor has an equal right to the use of the stream for the ordinary purposes of the house and farm, even though such use may in some degree lessen the volume of the stream, or affect the purity of the water. Hazeltine v. Case, 46 Wis. 391 (1 N. W. 66, 32 Am. Rep. 715); Ulbricht v. Water Co., 86 Ala. 587 (6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72); 1 Lewis, Em. Dom. § 65. This right is not affected by the fact that the lower proprietor is a municipality instead of an individual. Smith v. City of Rochester, 92 N. Y. 463 (44 Am. Rep. 393); Hauptfs Appeal, 125 Pa. St. 211 (17 Atl. 436, 3 L. R. A. 536). It is not believed a case can be found where, out of deference to the rights of the lower riparian proprietor, it is made unlawful for the upper proprietor to make such reasonable and ordinary use of the water passing over his land as was made by the respondent in this case.

It is insisted by the people that, under the police power, it was competent to forbid any act on the part of the upper proprietor that would tend to impair the public health. It may be conceded that the police power of the State is very broad, but our attention has not been called to any principle of law, or to any case, the practical application of which will enable a village, city, or other municipality, for the purpose of obtaining a water supply, to prevent the ordinary and reasonable use of the waters of an inland lake or stream by an upper riparian proprietor, without the exercise of the right of eminent domain or without compensation.

In what we have said we do not mean to intimate that an upper proprietor may convert his property into a summer resort, and invite large numbers of people to his premises for purposes of bathing, and give them the right possessed only by the riparian owner and his family. We are undertaking to decide only the case which is presented here. Upon the record as made, we think the court should have directed a verdict in favor of respondent.

The conviction is reversed, and a new trial ordered.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    TOWNSHIP OF MERRITT v. HARP.
    1. Townships — Interest in Highways — Injunction—Parties. A township has such an interest in its highways that it may maintain a bill to restrain the unlawful flooding of the same. Township of Denver v. Booming Co., 51 Mich. 472, distinguished.
    2. Same — Pleading—Multifariousness. Such a bill, brought against a county drain commissioner and the highway commissioners of two other townships, alleging the maintenance of certain drains and ditches whereby water is discharged upon lands in complainant township, to the consequent injury of its highways, is not open to the objection of multifariousness.
    3. Nuisance — Flooding Lands — Equitable Remedy. The unauthorized casting of water upon lands not condemned, though done by public authority, creates a nuisance, from x which relief may be had in equity.
    Appeal from Bay; Shepard, J.
    Submitted February 21, 1902.
    (Docket No. 107.)
    Decided June 24, 1902.

      Bill by the township o£ Merritt against William Harp, drain commissioner of Tuscola county, and Francis Dawson and William Findlay, highway commissioners of Gilford and Denmark townships, respectively, in said county, to restrain the flooding of complainant’s highways. From an order overruling separate demurrers to the bill, defendants appeal.
    Affirmed.

      Isaac A. Gilbert (James Van Kleeck, of counsel), for ■complainant.

      G. W. Davis, for defendants.
   Montgomery, J.

This is an appeal from an order -overruling the several demurrers of defendants to the bill, of complaint. The bill alleges that there are in said township numerous highways, bridges, and culverts, constructed, built, and maintained at the public expense, and controlled by the township. It sets out the location of these highways, bridges, and culverts, and the cost; that there are certain low lands in the township, and no outlet by which water brought upon such lands can escape, but that the water remains and forms a nuisance, and endangers the public health, and should be abated. The bill further alleges that the county authorities of the county of Tuscola, to wit, the county drain commissioner, who is made a defendant herein, and the township authorities of the townships of Gilford, Tuscola county, and of Denmark, Tuscola county (the highway commissioners of such townships being made defendants), have caused certain drains and ditches to be constructed and maintained, which carry, convey, and discharge water upon the low lands before mentioned. The bill proceeds to describe specifically the land, and then alleges that, when there is a large accumulation of water in the ditches, in the spring and at other wet seasons of the year, the water conveyed by the ditches comes through them in such quantity and with such force as to injure and destroy the highways and bridges before referred to. The bill further alleges that the defendants claim and contend that they have the right to continue to maintain said ditches and drains, and asks that this continuing trespass be restrained. The demurrer is based upon two propositions: First, that the bill is multifarious; and, second, that the complainant cannot maintain the action, for the reason that the highways and bridges are under the supervision of the highway commissioner. Under Chancery Rule 9 a, we need not look further to the substance of the bill than to ascertain whether it is open to the specific objections raised by the demurrer.

It is contended that, for any such injury as is threatened to the highways of the township, the highway commissioner is the only party who can bring suit; and reliance is placed upon the case of Township of Denver v. Booming Co., 51 Mich. 472 (16 N. W. 817). That was an action at law to recover damages, and it was there held that, inasmuch as the statute confers the right upon the overseer of highways in the first instance, and upon the highway commissioner in case of his failure, to institute suits for injuries to highways, an action for damages could not be maintained by the township; and this upon the ground that the statute then in force, and still in force, contemplated that the proceeds of an action for damages to the highway should be appropriated to the fund of the district where the injury occurred, and that it would be contrary to its terms to allow such suits to be brought on several grievances, in separate districts, together, so as to make it impossible to get at the share of each district. But that case recognizes that, since townships have been made responsible in certain cases for injuries arising from defective bridges and ways, they have an interest in the maintenance of such highways. At least, there is no intimation against such a view. Nor are we cited to any statute which excludes the township from taking preventive measures, in its own interests, to preserve its highways. Nor are we cited to any case in which the courts have so declared. The township is a body corporate, and by 1 Comp. Laws, § 2268, is authorized to sue and be sued in its corporate name; and that it may apply to a court of equity, in a proper case, to prevent injury to property in which it is interested, seems to us clear.

As to the question of multifariousness, if the defendants are, in their several capacities, concerned in maintaining a water-course which casts water upon the lands of the complainant township, creating a nuisance, endangering its highways and bridges, they would seem to be proper parties. We think the bill sufficiently avers this, and the question of fact cannot be tried upon this issue. See the case of Davis v. Township of Frankenlust, 118 Mich. 494 (76 N. W. 1045).

That an unauthorized casting of water upon lands which have not been condemned, even though done by public authority, may create a nuisance which is remediable, see Pennoyer v. City of Saginaw, 8 Mich. 534; Ashley v. City of Port Huron, 35 Mich. 296 (24 Am. Rep. 552).

The order overruling the demurrers will be sustained, and the case remanded, with leave to the defendants to answer over on the usual terms. The complainant will recover costs in this court.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


text:
    PEOPLE v. SHURLY.
    1. Public Health — Dangerous Diseases — Reporting—Consumption.
    2 Comp. Laws, § 4453, requiring attending physicians to report oases of small-pox, cholera, diphtheria, scarlet fever, “or any other disease dangerous to the public health,” covers cases of consumption, if consumption is in fact a disease dangerous to the public health.

      2. Same — Trial—Submission to Jury.
    In an action to recover a penalty for failing to report a case of consumption, the jury found specially that consumption is a disease dangerous to the public health, and contagious, but that it is not, by reason of its contagious nature, a disease dangerous to the public health, and is not to be classed with such diseases as smáll-pox, cholera, diphtheria, Scarlet fever, or measles. Held, that the submission of the question whether consumption is to be classed with such other diseases was error.
    3. Same — Instructions.
    It was error to instruct the jury that a verdict for the people meant that the statute relating to diseases dangerous to the public health had been “enlarged” to include consumption.
    4. Same — Physician’s Privilege.
    It was also error to instruct that the statute generally prohibits a physician from disclosing any information acquired while attending a patient, which was necessary to enable him to prescribe, as it likewise was to permit an inquiry as to whether patients afflicted with consumption would be likely to give their consent to having their cases reported.
    Error to Wayne; Donovan, J.
    Submitted February 21, 1902.
    (Docket No. 129.)
    Decided June 24, 1902.

      Assumpsit by the People of the State of Michigan against Ernest L. Shurly to recover the statutory penalty for an alleged violation of 2 Comp. Laws, § 4453, relating to the reporting of contagious diseases. From a judgment for defendant, the people bring error.
    Reversed.

      Ormond F. Hunt, Prosecuting Attorney, for the people.

      William P. Lane, for appellee.

      Henry A. Haigh, amicus curice.

   Montgomery, J.

This case was before the court at the June term of 1900, and was reversed and remanded for a new trial. The report of the case in 124 Mich. 645 (83 N. W. 595), fully states the issue, and also lays down the rule of law for the case. It was then held that the statute (2 Comp. Laws, § 4453) requires an attending physician to report cases of consumption, if consumption is in fact a disease which is dangerous to the public health. On the second trial, numerous special questions were presented to the jury, who found that consumption is the most prevalent disease in Michigan, and causes more-deaths than any other disease; that it is a disease dangerous to the public health; that it is contagious from man to man, — but found that it is not, by reason of its contagious nature, a disease dangerous to the public health, and that it is not to be classed with such well-known diseases, dangerous to the public health, as small-pox, scarlet fever, measles, cholera, and diphtheria. The jury also found the defendant guilty of failing to report a disease dangerous to the public health.' The circuit judge,- on this finding, set aside the verdict of the jury, and entered judgment for defendant. The people bring error.

The question whether consumption is to be classed with small-pox, scarlet fever, measles, cholera, and diphtheria should not have been submitted to the jury. If the disease is contagious and dangerous to the public health, the law classifies it. It is altogether probable that this question led the jury away from the main issue, and made way for the answer that consumption is not, by reason of any contagious nature, a disease dangerous to the public health. Certainly it is difficult to reconcile such a finding with the findings which show it to be so fatal a disease, that it is contagious from man to man, and that it is dangerous to the public health.

The court, on request of defendant’s counsel, charged as follows:

“If the verdict is for the people, it means that the statute relating to diseases dangerous to public health has been enlarged or made to include consumption, and that disease must participate within that statute. I will not say that it must participate with the same strictness, but it must be reported, — name, age, and condition. It must come reasonably within the same family as a contagious disease. * * *
“If the statute is made to include consumption among the dangerous diseases to public health, the State and local boards of health may treat it in the same manner prescribed by statute for the care and control of other specific diseases, kindred in their nature.”

We think these instructions were misleading, and calculated to commit to the jury duties which the law casts upon the court. It is not correct to say that, if consumption is found to. be a dangerous disease, the statute has been enlarged' by such finding. As we held on the former hearing, if consumption is a disease dangerous to the public health, it is within the statute as enacted by the legislature, and it follows that the statute has not been enlarged. The term is exceedingly unfortunate and misleading.

The court charged the jury that the statute generally prohibits a physician from disclosing any information acquired while attending upon a patient, which information’ is necessary to enable the physician to prescribe for the patient. It is altogether clear that this statute is no defense in this case, if consumption is a disease dangerous to the public health. And while it might properly be cited to the court in discussion of the question whether the statute was intended to include consumption, it could furnish no proper aid to the jury in deciding the question of fact involved.

The court permitted an inquiry as to whether patients afflicted with consumption would be likely to give their consent to having their cases reported. This opened up an inquiry in no way bearing upon the issue being tried. It is altogether likely that patients afflicted with small-pox or other infectious diseases might object to having their cases reported, but it would hardly be contended that the physician could excuse his noncompliance with the requirements of the statute by showing a dissent in the particular case or generally.

There was a mistrial. The judgment will be reversed, and a new trial ordered.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


text:
    PEOPLE’S SAVINGS BANK OF WEST BAY CITY v. HINE.
    1. Bills and Notes — Indorsement —Corporations—Authority of Officer — Evidence.
    In an action by a bank on a note made by defendant, payable to the order of a corporation, and indorsed in its name by its secretary, there was evidence that the note was given in part renewal of other paper made and indorsed in like manner; that the president of the corporation was also the cashier of the bank, who accepted the note; and that the president and secretary of the corporation, after a consultation of its officers, had made another note 'for matters growing out of the same transaction, which had been accepted by defendant. Held, sufficient to show prima facie the secretary’s authority to indorse the note.

      2. Same — Bank Cashier — Notice.
    A bank which discounts a note for a corporation of which its cashier is president is not chargeable with the latter’s knowledge of facts invalidating the note in the hands of the corporation. State Sav. Bank v. Montgomery, 126 Mich. 327, followed.
    Error to Bay; Shepard, J.
    Submitted April 8, 1902.
    (Docket No. 22.)
    Decided June 24, 1902.

      Assumpsit by the People’s Savings Bank of West Bay City against Frederica Hine upon a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      .John L. Stoddard, for appellant.

      Pierce & Kinnane, for appellee.
   Montgomery, J.

This is an action upon a promissory note in the sum of $200, made by the defendant in the name of Hine & Co., payable to the order of the Valley Coal Company, indorsed on the back, “Valley Coal Company, I. J. Hiller, Secretary.” The plaintiff recovered judgment by direction of the court, and defendant brings error.'

Objection was made to the introduction of the note in evidence, upon the ground that the authority of Hiller to make the indorsement had not been proved. The record shows that the note in question was given in part renewal of other paper made by the defendant and indorsed by the secretary, who was also manager; that, when the note in question was made, it replaced in part the former note. The president of the Yalley Coal Company was also the cashier of the bank, who accepted the note in question. It also appears that the secretary and president had made another note, accepted by the defendant, and this after a consultation of the officers of the company relative to the transactions between the Yalley Coal Company and defendant. We think enough appears, therefore, to show prima facie that the authority of the secretary to indorse this, paper was recognized by the corporation. See 1 Daniel, Neg. Inst. § 394.

The only other question presented is whether this defendant is in position to assert, as against the ,bank, equities existing between herself and the Valley Coal Company. The facts are that at the time of the execution of the original note, of which this is in part a renewal, the Valley Coal Company undertook to sell and deliver to defendant 1,333J tons of coal, and two notes were given in payment for the same, and the coal was the only consideration for the paper; and it was expressly agreed that, if the coal company failed to deliver the amount of coal contracted, the defendant should be liable on the paper only for the coal delivered. The company failed to deliver any considerable portion of the coal, so that, as between the defendant and the Valley Coal Company, the equities are with the defendant, and a complete defense exists. The testimony is undisputed, however, that the plaintiff bank discounted the original paper immediately upon its execution, and without notice of any defect in the same, except as hereinafter stated, and that the present paper was given in renewal of such first note. The defendant sought to show notice to the bank by showing the fact that the cashier of the bank, Mr. Shaver, was also president of the Valley Coal Company, and that he knew of the contract above referred to, and that, as he discounted the paper, the bank was chargeable with knowledge of the infirmities of the paper. The record shows without dispute that, when the note was offered for discount by the secretary of the coal company, Mr. Shaver consulted two of the directors, and after consulting them took the paper, and discounted it in the regular course of the banking business. The question whether, under these circumstances, the bank was chargeable with the knowledge of the cashier, who was acting in a dual capacity, has been recently considered by this court in the case of State Sav. Bank v. Montgomery, 126 Mich. 327 (85 N. W. 879). The reasoning in that case decides the present. See, also, Innerarity v. Bank, 139 Mass. 332 (1 N. E. 282, 52 Am. Rep. 710), and the cases cited in State Sav. Bank v. Montgomery, supra.

Judgment affirmed.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


text:
    ANDERSON v. WIRTH.
    1, Plats — Discrepancy—Boundaries.
    Where there is a shortage or a surplusage in the actual land platted into lots and blocks with intervening streets, and the original monuments indicating the limits of the lots have disappeared, each block should, if possible, be treated as distinct, and the shortage or surplusage therein be apportioned among the lot owners, except so far as possession has fixed the limits.
    2. Boundaries — Location—Survey—Evidence.
    Where, in ejectment, the issue was as to the exact location of the boundary line between two lots, and plaintiff sought to show the location of the line by a surveyor who testified that he took as his starting point the center of a railroad track situated on a right of way bordering the block, and had assumed that the track was originally located in the exact center of the right of way, and had not been changed, it was error to reject defendant’s offer of evidence that the track had been moved.
    Error to Wexford; Chittenden, J.
    Submitted April 9, 1902.
    (Docket No. 40.)
    Decided June 24, 1902.
    Ejectment by Andres P. Anderson against Henry Wirth. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Sawyer & Bishop, for appellant.

      U. S. Albertson, for appellee.
   Montgomery, J.

This is an action of ejectment to recover possession of a strip of land about six inches wide. The question involved is the location of the lot line between lots 5 and 6 of block 1 of the city of Cadillac. Harris street is a thoroughfare running east and west. It is crossed at right angles by three thoroughfares, in the order named, beginning with Lake street on the west, the Grand Rapids & Indiana Railroad right of way, 319 feet to the east, and Mitchell street, still 150 feet farther to the east, excluding from these measurements the ground occupied by the right of way. The space between Lake street and the.railroad right of way, north of Harris street, was platted as block 1. The space between the right of way and Mitchell street was platted as block C.

The questions arising upon this record relate to rulings in receiving and excluding testimony. It is enough to say of the theories in the case that the plaintiff sought to establish the boundaries of block 3, and, if he was correct in doing so, and no error was committed in the receipt of testimony, the plaintiff was apparently entitled to recover the premises in dispute. The defendant contends that, not only did the plaintiff fail to establish the lot lines, but that it seems impossible to do so, and that the only fixed monuments now to be found would require that, in fixing the lot lines, a survey of both blocks 1 and C should be taken into account, and that, if there is a shortage, — as there is, — this should be deducted from the lots in both blocks. It is manifest that this result should follow only as a last resort, and in case there has been no occupancy which precludes it. If it is possible to do so, block 1 should be treated as distinct; and the shortage or surplus-age of actual land in the platted portion distributed among the lot owners in this block, except so far as possession has fixed the limits. It is not necessary to refer further to the law of the case, except to revert to the rulings as to the admission of testimony.

The plaintiff sought to show the location of this lot boundary by Mr. Alderman, the county surveyor. He appears to have proceeded upon the theory that the center of the railroad track was precisely 50 feet from the western boundary of the railroad right of way as platted. His theory upon this point, we think, is made clear by his testimony, which we quote:

Q. You don’t know, do you, whether or not the main track remains in the same place where it was laid when the track was first put down ?
A. No, I don’t know anything about it.
Q. Your 1899 survey was made upon the theory that it remains in the same place ?
“A. Yes, sir; I supposed it was. Yes, sir; I didn’t contradict it any. * * *
Q. Now, let’s begin with yesterday’s survey. What did you do yesterday ?
“A. I went down to Lake street, and took the point on Lake street and Harris street.
“ Q. You found the same corner you found before?
“A. Yes, sir.
“Q. What did you do then ?
“A. I measured across block 1.
Q. How far did you measure?
“A. I measured as far as the railroad limit.
Q. How could you tell where the railroad limits were ?
A. I measured to the same place, — to the boundary,— supposed to be the boundary.
Q. You measured to the same place that you had found before ?
A. Yes, sir.
Q. Then, if you were right before, this last survey was right, and, if you were wrong before, this last survey was wrong, wasn’t it ?
“A. It was just the same as before. * * *
Q. Now, Mr. Alderman, I wish to ask you this question (I think it was answered at the last trial): If the main track of the Grand Rapids & Indiana Railroad has been moved since it was laid down, did you work upon the correct theory in ascertaining the true lot line ?
“A. Why, if it had been moved an awful sight, it would make some difference, probably.
Q. Wouldn’t it make a difference if it had been moved at all ?
“A. It certainly would, that much.
Q. It would make the difference of the removal, wouldn’t it ?
“A. Yes.
Q. You don’t know whether it had been moved at all or not, do you ?
“A. No, sir.
Q. In surveying, you always proceed from fixed monuments, don’t you, by way of measurements ?
“A. Yes, sir.
Q. Did you consider the railroad track a fixed monu- ' ment in making this survey ?
“A. Why, it seemed to be fixed; yes, sir.
Q. You considered it a fixed monument?
“A. Yes, sir.
Q. Now, if that fixed monument was not in the position in which it was placed by the plat, then it wouldn’t be — the result arrived at by you wouldn’t be correct, would it?
‘A. Why, it seemed to leave more on the east side than it did on the west. The east line didn’t seem to make the difference.”

Notwithstanding this testimony, the circuit judge excluded testimony offered by defendant to show that the railroad track was not where it was originally, laid, unless accompanied by a proposition to show that it was originally laid in the center of the right of way. This ruling was manifest error, for the theory of the surveyor in making the survey was that the railroad track was located in the center of the right of way as platted. He took this as a monument, and, while it may not have been the only monument from which a jury could have found the lot lines, it was open to them, under this testimony, to find that this correctly fixed the lot line. We think this ruling was damaging error, and that the judgment should be reversed, and a new trial ordered.

Hooker, C. J., Moore a,nd Grant, JJ., concurred. Long, J., did not sit.