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the contract would not measure the full value of its property for purposes of taxation.-WINNEPISEOGEE LAKE COTTON & WOOLEN MANUFG. Co.v. TOWN OF GIL FORD, N. H., 35 Atl. Rep. 945.
104. TRIAL OF OF NSES AGAINST ORDINANCES-Dis. qualification of Omcers. On the trial by a city coun. ell of an appeal taken by a defendant from a conviction before a member of such council while acting as mayor pro tem., such member is disqualified from voting in the capacity of a juror.-CITY COUNCIL OF ANDERSON V. FOWLER, S. Car., 25 S. E. Rep. 900.
105. TRUST-Charitable Trusts-Validity.-A bequest to executors in trust to apply the income to the sup. port and education of such indigent orphan children in a county as, in the judgment of the executors, may be the most deserving, and, after a certain time, to divide the principal among them, is not invalid as a charitable trust for uncertainty in the beneficiaries.SAWTELEE V. WITHAM, Wis., 69 N. W. Rep. 72.
106. TRUST - Constructive Trust - Corporations. It one party obtains the legal title to land by fraud, or by violation of a fiduciary relation, or in any other un. conscientious manner, so that he may not equitably retain it, equity will impress a constructive trust upon the property in favor of one who is in good conscience entitled to it.-NESTER V. GROSS, Mion.,69 N. W. Rep. 39.
107. TRUST-Enforcement.-Testator gave a planta. tion with the property thereon, then occupied by J, his son-in-law, to M, his widow, for life, with remainder to his granddaughter S, with provision however, that a reasonable support out of the property was given J, and that the plantation should be J's home for life, and with further provision that, during the life of M, tes. tator's grandchild B should receive from the property her education, maintenance and support: Held that, though J took sole possession of the property, and ap. propriated all the income, B could not maintain a suit to enforce her equitable rights, without proof that M declined to take steps to enforce the trust, and failed to furnish B with her support, etc.-BAILEY V. SELDEN, Ala., 20 South. Rep. 854.
108. VENDOR AND PURCHASER-Rescission of Contract. -Certain heirs agreed on a distribution of the estate, but one of them objected to the price tixed on certain land assigned to him, and refused to assent to the di. vision. One of the other heirs thereupon agreed to take such land from him at the price affixed, giving a note secured by mortgage for the price, and also agreed to pay to certain of the other heirs money which, otherwise, the objecting heir would be compelled to pay: Held, that the purchaser was not entitled to rescind the contract of purchase because the objecting heir refused to convey on tender of the mortgage, where the payments which the purchaser had agreed to make for the benefit of such objecting heir had not been made.-GRIFFIN V. GRIFFIN, III., 45 N. E. Rep. 241.
109. WAREHOUSEMEN-Who Are.-On trial of a mill company's manager for shipping wheat stored in the company's warehouse without written assent of the holder of the receipt therefor, it appeared that, according to its usual course of business, known to the per. son whose wheat was shipped, all wheat received became a part of the consumable stock of the mill, was manufactured into flour and other mill products, and sold; that it satisfied its obligation to the depositors by paying them the market price when demanded, or by returning a like quantity and quality of other wheat; and that, in the former case, no storage was charged, but in the latter a charge of eight cents a bushel was made: Held, that the company was not engaged in the warehouse business, and the wheat was not received on storage, within Laws 1885, p. 61, regu. Jating warehousemen.-STATE V. STOCKMAN, Oreg., 46 Pac. Rep. 851.
110. WILLS-Contest-Aliepg.-A bill by an alien to set aside the probate of a will, merely alleging that his decedent dled leaving certain land, excludes any
presumption that personal property was left by him, and therefore he is not entitled to maintain the suit without showing his right, through treaty, to inherit; Laws 1887, p. 5, probibiting aliens from inheriting land, -JELE V. LEMBERGER, III., 45 N, E. Rep. 279.
111. WILLS-Contest-Execution.-The execution of a (codicil is a publication of sthe whole will as it then existed, so as to include additions attached to the original will before the exeoution of the codicil.SHAW V. CAMP, Ill., 45 N. E. Rep. 211.
112. WILL8--Devise in Trust. Testator bequeathed his property in trust to his executors to pay to his daughter an annuity of $600, and on her death to her children an annuity of $300 each until they arrived at the age of 25 years, at which time there should be paid to each child as he arrived at that age, $10,000. Il, at the death of the daughter, any of her children were of the age of 25 years, the said sum should be paid in lieu of the annuity. At the termination of the trust as to all the beneficiaries and remainder.men, the property should be divided among the grandchildren then liv. ing. Held that, as the trust might, in case the children were born to the daughter after testator's death, be extended beyond a life in being and 21 years thereafter, It was void, as contrary to the rule against perpetu. ities.-LAWRENCE V. SMITH, Ill., 45 N. E. Rep. 259.
113. WILLS-Execution-Attestation.-Under Rev. St. 1894, § 2746 (Rev. St. 1881, $ 2576), providing that no will except a nuncupative will, shall be valid unless it be signed by testator, or by some one in his presence and with his consent, and attested by two witnesses, the attestation clause need not recite compliance with such requirement. It is sufficient if the witnesses subscribe their names, as witnesses, opposite the word "witness."-OLERICK V. Ross, Ind., 45 N. E. Rep. 192.
114. WILLS-Executory Devise – Failure of Issue.-A devise to testator's son D, “and his heirs forever, but, in case he should die without issue of his body, then the same shall go to the heirs of N, to them and their use forever," vests in D a fee, determinable on his dy. ing without children surviving him; and hence the limitation over, being upon a definite failure of issue, is valid as an executory devise.-STRAIN V. SWEENEY, III., 45 N. E. Rep. 201.
115. WILLS-Intention-Evidence. A beneficiary was entitled to the usufruct of the trust property so long as she lived, and and at her death it was to descend to her heirs, unless she devised it. Fearing that the property would pass under the provisions of a will which she had made, she procured from the legatees named therein a written acknowledgment that it was not her intention to exercise the power of disposing of the trust property, and that tbey disclaimed any in. terest therein under the provisions of the will making them residuary legateas: Held, that the acknowledg. ment was not competent evidence of the testatrix'g in. tention, as expressed in a subsequent will.- EMERY V. HAVEN, N. H., 35 Atl. Rep. 940.
116. WILL-Precatory Trust.-A provision in a will which gives the widow of the testator all his property for her use while living, "requesting' her to have cer. tain bequests paid to descendants of the testator named at her death, is sufficiently definite to create a trust in favor of such beneficiaries, wbich will be enforced by a court of equity on the death of the wife without having executed the power.-COULSON V. AL PAUGU, III., 45 N. E. Rep. 216.
117. WILL-Testamentary Powers-Execution.-Tes. tator devised land to his wife, in trust that, 110 mar. ried, and had “issue" and the wife thought it advisable to do so, she might convey the land to such "issue or children," and if no such conveyance was made, the land was to go to a township for school purposes: Held, that the interest of the children of Owas de pendent upon a conveyance by the wife, and there. fore, where the land was conveyed by the wile to one child alone, the other children acquired no interest therein.-CBIST v. SCHANK, Ind., 45 N. E. Rep. 190.
Central Law Journal.
person cannot do openly he should not be allowed to do under a secret trust.
presumption that personal property was left by to and therefore he is not entitled to malotain the without showing his right, through treaty, to intern Law: 1587, p. 6, probibiting alieds from laberitor 22 -JELE V. LEMBERGER, III.. 45 N. E. Rep. 27.
III. WILLS--Contest--Execution.-The executia a fcodicil is a publication of Ithe wbole wil vi then existed, 90 as to include additions atracted to the original will before the execution of the cod:SHAW V. CAMP, III., 45 N. E. Rep. 211.
112. WILLS-Devise in Trust.- Testator bequeatte bl property in trust to bis executors to pay ta di daughter an appuity of $300, and on her death to : etildren an annuity of $300 each until they artes the age of 25 years, at which time there shoulder to each child as he arrived at that age, $io, ici. Lu the death of the daughter, any of ber children werd the age of 25 years, the said sum should be paid bis of the annuity. At the termination of the trust all the beneficiaries and remainder.men, the pro should be divided among the grandchildren tben ing. Held that, as the trust might, in case the con were born to the daughter after testator's death, Extended beyond a life in being and 21 years toerute It was void, as contrary to the rule against perfect itles.-LAWRENCE V. SMITH, III., 45 N. E. Rep.
113. WILLS-Execution-attestation.-Coder Bar. 184, $ 2746 (Rev. St. 1881, $ 2576), providing that er except a nuncupative will, shall be valid unless 8.goed by testator, or by some one in his presente with his consent, and attested by two with attestation clause need not recite compliance such requirement. It is sufficient if the titzen subscribe their names, as witnesses, opposite e word 'witness."-OLERICK V. Rose, Ind., 41.8* 112.
114. WILLS-Executory Derise – Failure ol lss devise to testator's son D, “and his heirs loreres, es in case be sbould dle without issue of his body, it! the same shall go to the heirs of N, to them and te use forever," vests in D a fee, determinable on bio
ing without children surviving him; and bence in limitation over, being upon a deinite failure of.com
ST. LOUIS, MO., JANUARY 15, 1897.
A district court of Colorado seems to have
had the honor of determining for the first The lesson taught by American Oak time the rule of law governing the admission Leather Co. v. Fargo, recently decided by in evidence of shadowgraphs or photographs Judge Grosscup, of the United States Circuit made by what is known as Cathode or X ray Court, Northern District of Illinois, will be a process.
Smith v. Grant, Chicago Legal salutary one to officers and directors of cor- News, December 26, 1896. The court porations. There, a corporation really insolv- held such photographs admissible as secent, but still a going concern, executed to ondary evidence upon the same ground as certain of its leading creditors, judgment maps or drawings. Objection was made notes for debts existing and fresh advances on the ground that, being photographs of an of mones, promising to execute no other object unseen by the human eye, there is no judgment notes or to give in any form any
evidence that the photograph accurately porother preferences, and in order to make them trays and represents the object so photoeffectual, the president and secretary of the graphed. corporation and a majority of its directors, The shadowgraphs were offered in evidence resigned, and their places were filled by an as the court said "to show the present condielection of representatives of the creditors. tion of the head and neck of the femur The corporation then pursued its original oc- bone which is entirely hidden from the eye cupation, the business apparently being car
of the surgeon.
Nature has surrounded it ried on by the old oflicers of the company,
with tissues for its protection and there it and meantime the corporation purchased
lies hidden; it cannot, by any possibility, be large quantities of goods from miscellaneous
removed or exposed that it may be compared erelitors. Later, finding the continuance of
with its shadow as developed by this now business impracticable, judgments were en
scientific process." tered upon the judgment notes and an
The court concludes as follows: “In signment of accounts was made to the pre
addition to these exhibits in evidence, ferred creditors, and the property sold under the execution. It was held, that although no
we have nothing to do or say as to what they
purport to represent; that will, without actual fraud was shown, yet these circum
doubt, be explained by eminent surgeons. stances constitute a fraud in law,
These exhibits are only pictures or maps, to ment being equivalent to a secret mortgage,
be used in explanation of a present condition, with possession remaining in the mortgagor.
and therefore are secondary evidence and not These arrangements evinced an intention to
primary. They may be shown to the jury as evert a secret barrier, generally, against other
illustrating or making clear the testimony of creditors , during the indefinite period al
experts. The law is the acme of learning lowed the corporation to tide over its busi
It is the essence of
throughout all ages. ness troubles. Such an arrangement was an
reason, wisdom and experience. Learned attempt to erect an invisible barrier in con
priests have interpreted the law, have classiim of the favored creditors; to make the
fied reasons for certain opinions which in corporation impregnable, not only to attack,
time have become precedents and these ordibat helpless against appeal to its sense of
narily guide and control especially trial justice by the other creditors; and would, if
courts. We must not, however, hedge ourtalii, accomplish all that a secret chattel
selves round about with rule, precept and mortgage, with possession and power remain
precedent until we can advance no further. ing with the mortgagor, could have accom
Our field must ever grow as trade, the arts pilistel; it must therefore be treated, in
and science seek to enter in. spuits as such a mortgage would be treated,
During the last decade at least, no science and it is within the plain prohibition of the
has made such mighty strides forward as ht. The court in this opinion seems to an
surgery. It is eminently a scientific profesBounce the correct doctrine, that what a
is Falld as an executory devise.-STRAIN F. STELSE II., 43 N. E. Rep. 201.
115. Wills-Intention-Evidence.-beneficiarte entitled to the asufruct of the trust property so 1 as she lived, and and at her death it was to decent" her beirs, unless she devised it. Fearing til? property would pass under the provisions of : which she had made, she procured from the least named therein a written acknowledgment that any pot her intention to exercise the power of dispaa the trust property, and that they disclaimed azi ferest therein under the provisions of the will bits shem residuary legatees: Held, that the acknon ment was not competent evidence of the testatris: ention, as expressed in a subsequent will -Excel JATEN, N. H., 35 Atl. Rep. 940.
116. WILL-Precatory Trust.-A provision in stil yhich gives the widow of the testator all his prices or her use while living, "requesting" her to haremos ain bequests paid to descendants of the template
Jamed at her death, is sufficiently definite to con
rust in favor of such beneficiaries, which will ***
forced by a court of equity on the death of them Fithout having executed the power.-COULSOFT
ALGH, 11I., 45 Y. E. Rep. 216.
117. WILL-Testamentary Powers-Execution. So ator devised land to his wife, in trust that, i!!??
led, and had “issue" and the wife thought it adre
do so, she might convey the land to such Jhildren," and if no such conveyance 749 at Jind was to go to a township for school porno Feld, that the interest of the children of Jendent upon a conveyance by the wife, and 1 pre, where the land was conveyed by the rite si cat Jhild alone, the other children acquired to inter
sion, alike interesting to the learned and the
perein.-CRIST 5. SCHANK, Ind., 45 N. E. Bep. IX.
unlearned. It makes use of all science and CRIMINAL LAW-PUBLIC TRIAL_WITNESSES learning. It has been of inestimable value to --CONSTITUTIONAL LAW.-The Court of Crim. mankind. It must not be said of the law inal Appeals of Texas has lately held, in that it is wedded to precedent; that it will Cline v. State, 36 S. W. Rep. 1099, that the not lend a helping hand. Rather let the provision of section 10 of the bill of rights courts throw open the door to all well con- (substantially identical with the provisions of sidered scientific discoveries. Modern science other State constitutions), that in all crimhas made it possible to look beneath the tis- inal prosecutions the accused shall be consues of the human body, and has aided surg- fronted with the witnesses against him, refers ery in telling of the hidden mysteries. We to the prosecution by "public trial” before believe it to be our duty in this case to be the the "impartial jury" also guaranteed him by first, if you please, to so consider it, in ad- the same section; and in view of that provismitting in evidence a process known and ac- ion, and the declaration of section 29, that knowledged as a determinate science."
"everything in this bill of rights shall forever remain inviolate and all laws contrary thereto
* shall be void,” neither court nor legisNOTES OF RECENT DECISIONS.
lature can legally authorize the reading in
evidence against the accused on his trial of RAILROAD COMPANY · LIABILITY TO TRES
testimony given by witnesses on another PASSERS ON TRACK.--In connection with the case of Wabash R. Co. v. Jones, reported
hearing, whether at the trial in court or before in 44 Cent. L. J. 10, together with note
an examining magistrate, even upon a show
ing that such witnesses are dead. The opincontaining a summary of recent cases on the
ion of the court reviews at great length the subject, it will be of interest to read the opin
authorities on the subject. One of the memion of the United States Circuit Court of Ap
bers of the court dissented.
INJUNCTION — CONTEMPT OF COURT — CON
TEMPTS railroad company is not bound to any act or
CLASSIFIED.-Contempts, broadly service in anticipation of trespassers on its
considered, are of two kinds—direct and track, nor is the engineer obliged to look out
constructive. Contempts committed in the for them; and a trespasser venturing upon presence of the court, sitting judicially, or so the track for purposes of his own assumes all
near as to interfere with the orderly course risk of conditions which may be found there,
of procedure, are direct contempts. Conincluding the operation of engines and cars.
tempts committed, not in presence of the
court, but which tend by their operation to NEGLIGENCE-RESTAURANT KEEPER-BUR- interrupt, obstruct, embarrass, or prevent DEN OF PROOF.--The legal proposition in- the due and orderly administration of justice, dorsed and applied by the Supreme Court of constructive contempts. Constructive Illinois, in the case of Scheffer v. Willoughby, contempts are of two general classes: First, 45 N. E. Rep. 253, savors nothing of novelty, those wherein the contemptuous acts primabut this cannot be said as to the facts under rily affect public rights or the due administrawhich defendant was charged with negli- tion of public justice ; second, those which gence. There the keepers of a restaurant primarily affect private rights, and only rewere sued for damages on the ground that motely and incidentally affect public rights they had negligently furnished plaintiff with or public justice. When contempt proceed. unwholesome food, whereby plaintiff became ings are prosecuted to vindicate a public sick. Plaintiff testified that she was served | right, they are criminal offenses, in which the with an oyster stew, and that, after eating a intent is a material and necessary ingredient. portion thereof, she became ill, and so con- When they are prosecuted, either solely or tinued for several weeks. It was held that primarily, to enforce and vindicate private the evidence was insufficient to make out a rights, which have been secured from violaprima facie case against the defendants so as
tion by an interlocutory or final decree of the to throw on them the burden of relieving court, they are not criminal, but civil, and themselves from the imputation of negligence. I remedial in their nature, and are punishable
CRIMINAL Law-PUBLIC TRIAL-We -CONSTITUTIONAL LAW.---The Court of 5 inal Appeals of Texas bas lately bello Clipe v. State, 36 S. W. Rep. 1099, ibada provision of section 10 of the bill of riga (substantially identical with the provisions d other State constitutions), that in all era: inal prosecutions the accused shall be c fronted with the witnesses against him, relee to the prosecution by "public trial" before the "impartial jury' also guaranteed bin the same section; and in view of that prot: ion, and the declaration of section 29, 2 "everything in this bill of rights shall fee remain in violate and all laws contrary there
shall be void," neither court nor lature can legally authorize the readira: evidence against the accused on his tris
. testimony given by witnesses on se hearing, whether at the trial in court or talin an examining magistrate, eren upons ing that such witnesses are dead. The op ion of the court reviews at great lenga 2 autborities on the subject. One of the 123 bers of the court dissented.
INJUNCTION — CONTEJPT OF Cocrt – 5 TEMPTS
Classified.—Contempts, brusi considered, are of two kinds— direct so constructive. Contempts committed in D presence of the court, sitting judicialls
, x near as to interfere with the orderly cours of procedure, are direct contempts
. lt tempts committed, not in presence ? court, but which tend by their operstics ? interrupt, obstruct, embarrass, or pret the due and orderly administration of jente are constructive contempts. Coustrate
without regard to the motive of defendant. such messenger is transported to the benefit
NEGLIGENCE ELECTRIC WIRES
INSULAv. American Strawboard Co., 75 Fed. Rep. 972. There defendant was enjoined, at the
TION.-In McLaughlin v. Louisville Electric suit of a water company, from allowing any Light Co., 37 S. W. Rep. 851, decided by deleterious substances to escape from its fac
the Court of Appeals of Kentucky, it was tory into the river, and thereupon built a
held that an electric light company is rereservoir on the bank of the river, which it quired to perfectly insulate its wires at points negligently and carelessly permitted to break where persons are apt to come in contact and discharge its contents. It was held that
with them, and to use the utmost care to keep this was a contempt punishable by fine, or by
them perfectly insulated. It appeared that fine and imprisonment, although there was no
plaintiff, a painter by trade and not in privity willful purpose to violate the injunction,
with the defendant, was engaged in painting
a house, and while so engaged, was injured CARRIERS OF PASSENGERS LIABILITY FOR
by coming in contact with an electric light INJURY TO EXPRESS MESSENGER LIMITING wire erected and maintained on the side of Liability.— The Supreme Court of Indiana said house by defendant, the insulation of decides, in Louisville, N. A. & C. Ry. Co. v. which at a joint had become defective by Keeter, that a railroad company cannot, by
reason of the wrapping having become loosspecial contract with a passenger, exempt it.
ened. It was held that conclusive proof of self from liability for the results of its negli- actionable negligence had been made out. gence while performing a duty it owes to the
The court, after citing many authorities, public, as a common carrier; that it is not
used the following language: “The evidence the duty of a railroad company, as a common
in this case conduces to show that appellant carrier, to carry the goods of an express com
was at work at his regular trade, and was pany, and the messengers in charge of them,
where he had a right to be, and the joint of and that a railroad company which under
the wire, being apparently insulated, was to takes, as a matter of accommodation, or by
some extent, at least, a guaranty that there special engagement, to carry an express mes
was no danger; but independent of that fact, senger, whom it is not bound to carry, be
the situation of appellant, his work in hand, comes a private carrier, or bailee for bire, as
and the proximity of the wire were such that to the thing so carried, and may protect it
he might without negligence have thoughtself by contract from the result of its negli- lessly taken hold of the wire, because he gence in respect thereto. It appeared that
seemed to need support; and, besides, it was plaintiff , an express messenger, contracted
hardly to be expected that the current was on with the express company to assume all the
the wire at about noon, the wire being used risks of injury he might sustain in the course
wholly to supply incandescent lights or lamps. of his employment, whether occasioned by
It seems clear to us that appellee should have the gross or other negligence of any railroad,
been required to have had perfect protection or other carrier, and authorized the express
on its wires at the point and place where company to enter into a contract in bebalf of
appellant was injured. The fact that it was plaintiff , with any such carrier, exempting it
very expensive or inconvenient is no excuse from liability for injuries which he might re
for such failure. Very great care might be ceive in course of transportation. It was
sufficient as to the wires at points remote from held that a contract between the express
public passways, buildings or places where company and a carrier pursuant to the au
persons need not go for work or business; thority so conferred was valid and binding
but the rule should be different as to points en plaintiff , and that the mere fact that an
where people have the right to go for work, Espress messenger bad contracted with the
business or pleasure. At the latter points or express company to assume all risks of injury places the insulation or protection should be while in its employment, however occasioned, will not entitle a railroad company by which
made perfect, and the utmost care used to
contempts are of two general classes: Fs those wherein the contemptuous acts partes rily affect public rights or the due adminisor tion of public justice; second, those who primarily affect private rights, and 0215 motely and incidentally affect patdie e lor public justice. When contempt pret ings are prosecuted to vindicate 3 pes right, they are criminal offenses, in whicos
Jintent is a material and necessary ingredies
primarily, to enforce and vindicate con rights, which have been secured from
keep it so."
tion by an interlocutorr or tinal decret court, they are not criminal, but ciri, et remedial in their nature, and are pas
CENTRAL LAW JOURNAL.
TELEPHONE COMPANIES-INJURY TO PERSON ON STREET.--In Southwestern Telegraph & Telephone Co. v. Beatty, 37 S. W. Rep. 570, decided by the Supreme Court of Arkansas, which was an action against a telephone company for personal injuries, it appeared that one of defendant's wires was fastened to a pier of a business building in a city; that during a fire in an adjoining building persons were on the roof of the building over which the wire was stretched ; that plaintiff was on the street in front of such building, and that a brick fell therefrom on his head and injured him. Plaintiff claimed that the injury was caused by the bricks being loosened by the manner in which the wires were fastened to the building. It was held that instructions which made the dangerous character of the wires and their fastenings the sole test of defendant's liability, and required the jury to find for plaintiff without regard to diļigence in fastening the wires and in maintaining the appliances in a safe condition, were erroneous. The court charged that, if the street in front of such building was used by the public as a highway, and was recognized by the city as such, the jury should find that such street was a highway, and that plaintiff was rightfully therein. It was held that such instruction was not proper, though probably not prejudicial. The court says:
ing the right shall use ordinary care to avoid injury to others. Hence the liability for damages in every case grows out of the violation of a duty of the injur: ing to the injured party, and not out of the dangerous character of the act which caused the damages. The law may probibit the act because it is dangerous, and out of this prohibition the duty is created, upon the violation of which the right of action for damages depends. It would be unjust and oppressive to exact of any one the payment of damages to another when he has violated no duty which he owed to himwhen he has done him no wrong. For this reason 3 legal duty is an essential element of negligence, and there can be po negligence where there is no duty.
A few examples will serve to explain what we have said. The old common law of England made it the duty of every man to keep his cattle within the limits of his own possessions. If he failed to keep them up, he failed to discharge his duty, and was liable to the owner of the premises upon which they estrayed for damages done; and this liability did not depend upon any neglect of their owner in failing to keep them up. Here he was required to keep them up, because of their propensities to do mischief when running at large, in order to protect others. For the same rea. son the owner of any other domestic animal which is known by him to be vicious and accustomed to do hurt is required to keep him secure, and, failing to discharge this duty, is responsible for damages done while he is at large, without regard to the negligence of the owner.
“It is said in an early case,” says Judge Cooley, "that where one has filtby deposits on his premises, he whose dirt it is must keep it that it may not tres. pass. Therefore, if filthy matter from a privy or other place of deposit percolates through the soil of the adjacent premises, or breaks through into the neighbor's cellar, or finds its way into his well, this is a nuisance. Nor where this is the natural result of the deposit is the question of liability one depending on degrees of care to prevent it. Says Foster, J.: "To suffer filthy water from a vault to percolate or filter through the soil into the land of a contiguous proprietor, to the injury of his well or cellar, where it is done habitually and within the knowledge of the party who maintains the vault, whether it passes above ground or below, is of itself an actionable tort. Under such circumstances the reasonable precaution which the law requires is effectually to exclude the filth from the neighbor's land, and not to do so is of itself negligence.' Only sudden and unavoidable acci. dent which could not have been foreseen by due care could be an excuse in such a case." Cooley, Torts, p. 673.
But the rule is different as to reservoirs in which water collected for useful and ornamental purposes. As to them Judge Cooley says: “It is lawful to gather water on one's premises for useful and ornamental purposes, subject to the obligation to con: struct reservoirs with sufficient strength to retain the water under all contingencies which can reasonably be anticipated, and afterwards to preserve and guard it with due care. For any negligence, either in construction or in subsequent attention, from which injury results, parties maintaining such reservoirs must be responsible. We say nothing now of injuries arising from the flooding of lands by reservoirs, which by raising the water must and do have that effect, but confine our attention to the case of reservoirs which cause injuries to the lower proprietors only as they break away. The American decisions seem to plant he liability on the ground of negligence, and the
Appellee insists that the instructions to which appellant objected were more favorable to it than they should bave been, and that therefore it was not preju. diced by them. His contention is that, if the wires and fastenings of appellant were dangerous, or be. come so, or if they rendered the pier to which they were attached dangerous, and by means thereof ap. pellee received the injury of which he complains, the appellant is liable to bim for the damages occasioned thereby, regardless of unskillfulness or negligence in the stretching and fastening of the same, or in the manner in which they were maintained, and without regard to the right to string the wires in the place they were, and without regard to the question as to the person who caused the injury by means of their instrumentality. Is this contention correct?
No one has the free and unlimited right to use his property in any manner he may desire. The exer. cise of such right by every one is impossible. The conflicting interests of individuals prevent it. Every one, in becoming a member of society, in order to conserve peace and harmony among its members, concedes to the law.making power the right to regu. late the manner and the extent of the exercise of such rights. In the exercise of the rigbt so conceded, the law requires every one to so use his property as not to injure another, and for the enforcement of this re. quirement in some cases forbids the exercise of certain property rights in a particular manner, and in some permit it on condition that the person exercis.