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quiring the tenant who seeks to charge his co- | ant admits, in his answer, the collection of the tenant with receiving more than his just propor- sum sued for, and sets up, by way of justification, tion of the rents and profits, to make allowance that the bonds, for the payment of interest on for moneys expended in the defense or protection which the tax was levied, were valid and lawful, of the common estate, as, for instance, in presery and that the tax was assessed according to law. ing it from forfeiture on account of non-payment The principal recitals of the answer may be found of taxes.
in the case of Ranney v. Bader, 50 Mo. 600. All We believe that these conclusions dispose of all the allegations of the answer were denied by the important questions in the case, the result replication, a trial had, resulting in a judgment being that the order denying a new trial is reversed. for defendant, from which plaintiff has prosecuted
his writ of error to this court. The various objec
tions made to the reception of evidence, and the MUNICIPAL BONDS - TAXES COLLECTED
giving and refusing instructions during the proFOR PAYMENT OF BONDS ILLEGALLY
gress of the trial, present but two questions for ISSUED CAN NOT BE RECOVERED BACK.
our determination :
1st. Were the bonds, out of which the interest RANNEY v. BADER.
originated, and for the payment of which interest the tax was levied and collected, issued by author
ity of law? Supreme Court of Missouri, April Term, 1878.
2d. If issued without lawful authority, can the
plaintiff recover for the enforced payment of the Hon. T. A. SHERWOOD, Chief Justice. WM. B. NAPTON,
taxes assessed and levied to pay interest on them? 16 WARWICK HOUGH, Associate Justices.
I. The bonds out of which the present contro46 E. H. NORTON, " John W. HENRY,
versy arose were issued by the County Court of Cape Girardeau,on behalf of Cape Girardeau town
ship, in said county, under the act of March 23, 1. THE BONDS ISSUED BY THE County Court of
1868. (Acts 1868, p. 92.) The evidence introCape Girardeau County, on behalf of Cape Girardeau Township, under act of March 23d, 1868, to aid
duced on trial shows that there were 619 registered in building the C. G. & St. L. R. R., were without au
and qualified voters in said township, and that at thority of law, and are void. Ranney v. Bader, 50 Mo. the election held for the purpose oi testing the 600, overruled.
willingness of the people of said township to sub2. THE BONDS BEING VOID, the tax levied to pay
scribe $150,000 of stock for the purpose of coninterest on them was illegal; but a collector who has
structing a railway commencing at the city of collected such illegal tax is not liable in any action Cape Girardeau, running in a southwest direction brought by a taxpayer to recover back the amount of to some desirable point on the state line, only 376 taxes so collected from him.
votes were cast in favor of the subscription, which 3. THE COLLECTOR NEED ONLY ENQUIRE whether
lacked 36 votes of being two-thirds of the qualithe assessor bad jurisdiction over the property; fied voters of said township. The first question i.e., whether it is taxable in any form, and he need not presented must, therefore, under the authority of trouble himself about the regularity of the proceed the cases of State ex rel. Woodson v. Brassfield, ings. If the tax-list shows jurisdiction he is protected.
and Webb v. Lafayette County Court, decided at 4. WHERE THE ASSESSMENT IS ILLEGAL, or is based this term, be answered in the negative. on the illegal act of the county court, the remedy of | II. The bonds being void because they were the tax-payer must be by a proceeding to arrest the
issued without authority of law, it therefore folexecution of the illegal assessment or collection of the
lows that the tax levied to pay the interest on tax. This may be done by certiorari or by bill in
them was illegal. While this is so, it does not equity, or by injunction by the attorney-general or other
follow that the defendant, who, as collector, enproper law officer.
forced its payment, is liable to be sued therefor. L. Houck, for plaintiff in error; T. C. Reynolds,
In the case of Rubey v. Shain, 54 Mo. 207, it was for defendant in error.
expressly held that the collector who had col
lected taxes which had been assessed for the purNORTON, J., delivered the opinion of the court:
pose of paying interest on an illegal and void This suit was instituted in the Circuit Court of subscription, made to a railroad company by the Cape Girardeau county, to recover the sum of county court, was not liable, in an action brought $67, which, it is alleged, the defendant, as sheriff against him by a tax-payer to recover back the and collector for said county, had collected from amount of tax so collected from him. This case plaintiff by coercion, the same having been levied is not deemed to be in conflict with those which on his real estate situated in the township of Cape decide that a tax collector is held to the same deGirardeau, in said county, as a special tax, to be gree of responsibility which attaches to sheriffs applied to the payment of interest on certain rail and constables, nor with the cases of State v. road bonds, issued by said county on behalf of Shacklett, 37 Mo. 280, and Glasgow v. Rowse, said township to the Cape Girardeau and State 43 Mo. 489, in which the collectors were held Line Railroad. It is also alleged in the petition, liable, on the ground that the property taxed that all the proceedings of the county court in was not subject to taxation, and that the illegality levying said tax, and issuing said bonds, were of the tax was apparent on the face of the tax without authority of law and void. The defend- | books placed in the hands of the collectors, and disclosed the fact that no jurisdiction existed to courts of equity will not interfere, because there levy the tax. While not in conflict with the prin- was a complete remedy afforded to the injured ciple announced in those cases, it is in harmony | party by an action at law against the officer. with that announced in the case of St. Louis M. There is, however, another ground of equitable L. Ins. Co. v. Charles, 47 Mo. 466, where it was | jurisdiction which reconciles the conclusion reached held that the collector need only inquire whether in the cases of Newmeyer v. Mo. & Miss. R. R. the assessor had jurisdiction over the property Co., and Rubey v, Shain, supra, with the cases above that is, whether it was taxable in any form, and cited, viz: That equity will maintain jurisdiction he need not trouble himself about the regularity to prevent multiplicity of suits; and no stronger of the proceedings. If the tax list shows juris case could be put for entertaining jurisdiction diction he is protected. “It was the collector's under this rule, than is presented when one taxduty to collect the tax, unless the assessment was payer, for himself and all other tax-payers of a void, and it could not be said to be void if the township or county similarly interested, brings his property was subject to taxation." It was also bill, asking tbe chancellor to put forth restraining held in the case of N. M. R. R. Co. v. McGuire, process to prevent the imposition and collection of 49 Mo. 483, that when the property is liable to be an unauthorized tax, and thus settle in one suit taxed in any form, though irregularly assessed, what it would take bundreds, and perhaps thousthe collector would not be liable to the tax-payer ands to do, if such relief were denied, and the for the amount collected. In the case of Ruby v. 1 parties subject to the payment of such tax were Shain, supra, which we think decisive of the driven, each one, to his action at law for redress. second point we are considering, it was held that Following the case of Rubey v. Shain, supra, the when the property was liable to taxation, the judgment is affirmed on the ground that the colassessor's book, superintended and sanctioned by lector is not liable. the county court, ordered the collection of the All concur in the conclusion reached, so far as it tax, the collector would be exonerated from is based on the non-liability of the collector, except liability, and that when the assessment is illegal, Sherwood, C. J., who dissents. Sherwood, C. J., or when it is based on the illegal act of the coun and Henry, J., concurring in views expressed in ty court, the remedy of the tax-payer, must be by regard to act of 1868, and bonds issued under it. a proceeding to arrest the execution of the illegal Napton, J., dissenting therefrom. Hough, J., adassessment and collection of the tax.
heres to his opinion in the Brassfield case, but deThis may be done by certiorari, under the au clines to declare the bonds invalid, on the ground thority of the cases of State ex rel. v. St. Louis that their recitals, which are not before the court, County Court, and State ex rel. v. Dowling, 50 Mo. may be such as to protect the innocent holders, 134, in which it was held that the action of the under the decision of Carpenter y. Town of Lacounty court in assessing taxes was judicial in its throp, 51 Mo. 483. character, and that a writ of certiorari would lie to review its action in that respect. It may also be done under authority of Newmeyer v. Mo. & Miss.
LIABILITY. R. R. Co., 52 Mo. 81, by any tax-payer who may for himself, and on behalf of all other tax-payers, similarly situated, by bill in equity to annul the SANDERSON V. PENNSYLVANIA COAL illegal acts of county courts in respect to assessing
COMPANY. and levying taxes. Judge Ewing, in the opinion of the court, cites approvingly the case of Wood v. Draper, 24 Barb. 187, in which it was held “that
Supreme Court of Pennsylvania, May, 1878. it must be regarded as the settled law of this court
Hon. DANIEL AGNEW, Chief Justice. that it will grant its aid to restrain, by injunction,
ULYSSES MERCUR, the imposition of any tax or burden on the tax
" ISAAC G. GORDON,
} Associate Justices.
" W. T. WOODWARD, I payer contrary to law, on a complaint tiled by any
" EDWARD M. PAXSON, tax-payer on his own behalf, as well as on behalf of others similarly interested.” It may also be Plaintiff was the owner of a tract of land on which done under authority of the case of State v. Saline he erected a dwelling-house, and through which tract Co. Court, 51 Mo. 352, where it was held that the
a stream ran, which was dammed by him and used state, through its attorney-general, or other proper
for an ice and fish pond, and also to supply a cistern.
Defendant established a colliery near plaintiff's land, law officer, might maintain a proceeding by injunc
and pumped the water therefrom, so that it passed tion to restrain the imposition and collection of an
into the stream and unfitted it for the use to which illegal tax.
plaintiff had been putting it. In an action by plaintitt to It is said the above cases are not in strict accord recover for the injury, the court below directed a nonwith the cases of Dean v. Todd, 22 Mo. 92; Sayre
suit. Held, error. v. Tompkins, 23 Mo. 443; Barron v. Davis, 46 Mo. 394; Leslie v. City of St. Louis, 47 Mo. 478; Stein
WOODWARD, J., delivered the opinion of the v. Franklin Co. 48 Mo. 176, which assert the doc
court: trine that courts of equity will not interfere by in In the year 1868 the plaintiff purchased a tract of junction to restrain the collection of an illegal and land in the city of Scranton, and began the erecvoid tax. The distinct ground upon which the 1 tion of a house upon it, which was finished in the court based its conclusion was, that in such cases ! year 1870. Before the purchese, a stream of water,
wbich ran through the land, was examined by Mr. | bor's mill, and lops the trees growing on the river Sanderson, who traced it to its source. It appears side, and the loppings impede the progress of the from his testimony that the existence of this stream stream, which hinders the mill from working. was a leading inducement to the plaintiff to buy Broom's Leg. Max., 366, 367. To render a particand build. It was called by some of the witnesses ular case an exception to the general principles Mearlow Brook, and was of an average width of controlling the exercise of dominion over property perhaps seven feet throughout the distance from by its proprietor, it must be ascertained to be exthe house of the plaintiff to the springs from which ceptional in its surroundings or its facts. From it flowed. Mr. Sanderson testified that when he necessity the principles are sometimes relaxed. traced it in 1868 the water was perfectly pure. They do not apply where it is impossible to gather Dams were built across it for the purposes of a fish safe facts to become bases for safe rules. With and ice pond, and to supply a cistern. Water was respect to water flowing in a subterraneous course, carried in pipes from the cistern to a ram, and it has been held that the owner of land through thence to a tank in the attic of the house. After which it flows has no right or interest which will the improvements were completed the defendants enable him to maintain an action against an owner established a colliery on lands belonging to them who, in carrying on mining operations on his own along the stream, and about two miles above the land in the usual manner, drains away the water land of the plaintiff. A drift was first made into from the other's land and lays his well dry. Acton their mine, and a shaft was afterwards sunk. The v. Blundell, 12 M. & W. 324. Haldeman v. Burckwater which collected in the drift, as well as that hart, 9 Wright, 514, and Wheatly v. Baugh, 1 Capumped by powerful engines from the shaft, ran sey, 528, were ruled in the same way. So rights into Meadow Brook, and was carried to its outlet and liabilities in respect of artificial streams, when in the Lackawanna river. It was alleged on the first flowing on the surface, are in some particulars trial that the effect of the mine water was to cor distinct from those respecting natural streams so rupt the water of the stream, and to render it worse flowing. They are distinct at least to the extent than worthless for any domestic or household use. that the user of the easement of sending on the There was evidence that the fish in the brook were water of an artificial stream to the land of a neighdestroyed; that the willows along the banks died; bor, is no evidence that the land from which the that the pipes connecting it with the cistern, the water is sent has become subject to the servitude ram and the house, were corroded and eaten out; of being bound to send it on. Gavin v. Martin, 19 that the water became unit for domestic use as C. B. N. S. 758. Perhaps Smith v. Kenrick, 7 C. early as 1873, and that its use for all purposes was B. 715, may be classed as an exceptional case also, abandoned in 1875. After the evidence of the in its circumstances, although as a precedent it will plaintiff had been given, it was held by the court probably prove of doubtful value. It was held to be inadequate to warrant or support a verdict, there that each of two owners of adjoining mines and a non-suit was directed.
has a natural right to work his own mine in the In the summary disposition that was made of the manner most convenient and beneficial to himself, cause, sight appeared to have been lost of some although the natural consequence may be that some distinctions which the law has settled, and a mis prejudice will accrue to the owner of the adjacent take seems to have been made in choosing the class mine. of precedents that were followed. The water in But except where it is qualified by the existence the mine of the defendants was in the ground be. of peculiar conditions, the duty of the owner of fore the colliery existed, but the drift and shaft property is defined by the maxim sic utere tuo ut collected it in such volume, and the mining opera alienum non lædas. Can it be said as a conclusion tions made its ejection necessary in such a direc of law that the duty of these defendants is qualition, as to render what was harmless in its natural fied by such conditions? They created an artificial state a souree of material discomfort, mischief and water course from their mine to Meadow Brook. disaster. Undoubtedly the defendants were en The plaintiffs insisted that the act resulted in grave gaged in a perfectly lawful business, in which large injury to them. Why ought not the jury to have expenditures had been made, and with which wide been left to determine the truth or falsity of their spread interests were connected. But, however allegation? It was declared in Gavin v. Martin, laudable an industry may be, its managers are still supra, that if the water in an artificial stream, when subject to the rule that their property can not be brought to the surface, is made to flow on the land so used as to inflict injury on the property of their of a neighbor, without his consent, it is a wrong neighbors. “Every man," Lord Truro observed, for which the party causing it so to flow is liable. in Egerton v. Earl Brownlow, 4 H. L. Cases, 195, If a man brings or uses a thing of a dangerous na“is restricted against using his property to the ture on his own land, he must keep it at his own prejudice of others." The invasion of an estab peril, and is liable for the consequences if it eslished right will in general per se constitute an in capes and does injury to another. Jones v. Festijury for which damages are recoverable, for in all nog, L. R. 3 Q. B. 736. The person whose grass or civil acts the intent of the actor is less regarded corn is eaten by the escaping cattie of his neighthan the consequences to the party suffering. Thus, bor, or whose mine is flooded by the waters from if a man lop a tree, and the boughs ipso invito fall his neighbor's reservoir, (Harrison v. Great Northupon another, or he shoot at a butt and hit another western R. R., 3 Hurl. & Colt. 238), or where habunawares, an action lies. So one is liable who has itation is made unhealthy by the fumes and noiand through which a river runs to turn his neigh- | some vapors of his neighbor's alkali works (St. Belen's Smelting Co. v. Tipping, 11 H. L. Cas. | rights of the plaintiffs as riparian owners are 642), is damnified without any fault of his own; not limited to their present modes of enjoyment. and it seems but reasonable and just that his It is impossible to forsee what new modes they or neighbor, who has brought something on his own their successors in title may resort to, or the exproperty which was not naturally there, harmless tent of damages which would be compensation to others so long as it was confined to his own for the injury which the continued pollution might property, but which he knows will be mischievous cause to such new modes of enjoyment.” While if it gets on his neighbor's, should be obliged to a right by prescription was the main element of make good the damage which ensues if he does not the title of the plaintiffs to a decree in Wood y. succeed in confining it to his own property. Fletch Sutliffe, and a partial element in the title of the er v. Rylands, L. R. 1 Ex. 280. In an elaborate plaintiffs in Pennington v. Brinsop Hall Coal Co., and carefully considered opinion in Mason v. Hill, it did not enter at all into the consideration of 5 B. & A. 1, Denman, C. J., held, that the pos Mason v. Hill. There indeed it was expressly sessor of land through which a natural stream put aside. “ We do not wish," the Chief Justice runs, has the right to the advantage of that stream declared, “ to rest a judgment for the plaintiff on flowing in its natural course, not inconsistent with this narrow ground.” Pennington v. Coal Coma similar right in the proprietors of the land pany was decided so lately as last May, and it above and below, and that neither can any pro would seem that in England this branch of the prietor above diminish the quantity or in- | law has been definitely and firmly settled. jure the quality of the water, nor can any And the question is by no means a fresh one in proprietor below throw back the water without Pennsylvania, In Barclay v. Commonwealth, 1 his license or grant. It was one of the features of Casey, 503, the defendant had been convicted of a that case that the water which the defendant had nuisance in the Quarter Sessions of Bedford, in the right to use, subject to the duty of returning permitting the washing and waste from his barnit, was heated when it was returned to the stream, yard to escape into the springs dedicated by the and the jury had assessed damages for that. The Penns to the use and benefit of the inhabitants of Chief Justice said in entering judgment: “ As to the town of Bedford In this case the judgment the right to recover for the injury sustained by the was reversed for an irregularity in the sentence, water being returned in a heated state, there can but the conviction was approved. Little Scbuylbe no question." In Wood v. Sutcliffe, 16 Jur. 75, kill Nav. Co. v. Richards, 7 P. F. S. 142, was an 8 E. L. & Eq. 217, an injunction was granted action to recover damages for injury to the plainto restrain the defendant, against whom a recor tiff's forge-dam in the Little Schuylkill River, ery had been had at law, from pouring dye-wares, caused by the throwing of coal dirt, slate and dye liquors,madder, indiyo or potash, into a channel loose earth into the channel of the stream by the that connected his dye-works with a stream called servants and employees of the defendants. The the “ Bowling Beck," on which, below the works, refuse matter was carried down the river by the the cotton inill of the plaintiff's was situated, and action of the water and deposited in the dam. in the use of the water of which they claimed Other persons were shown to have cast the refuse prescriptive rights. “I am satisfied from the evi of their mines into the water, and the court below dence," the Vice-Chancellor remarked in the had charged in substance that the defendants were course of his opinion, “ that to some considerable liable for the combined results of all the deposits. extent the pollution of this stream is inevitable, This instruction raised the main question on the and that no court of law or court of equity,nor all the writ of error. It was held here that the liability courts in the world, except there were a power of of the defendants began with their act on their removing all that mass of human beings which own land, and was wholly separate and independnow congregate about its banks, ever could restore ent of concert with others, and that their tort, it to the state in which it once was. But still it having been several when committed, did not bedoes not follow, because there be a certain degree come joint because its consequences united with of pollution which cannot be very accurately the consequences of the acts of others. But it measured, and which is inevitable, that therefore was not suggested that under any theory or doceverybody has a right to pollute the stream by trine of public policy the defendants had the right pouring in immense quantities of filth and pollu to use the river bed as a dumping ground for the tion from his own works to make it ten thousand rubbish of their mines. The corruption of the times worse."
water was not alleged it is true, but it is not Pennington v. Brinsop Hall Coal Co., L, R. 5 readily apparent how a principle could be sound Chan. Div. 769, was a case where an injunction that would justify the destruction of the water of was granted to restrain the defendants from pump a running stream for one purpose and not justify ing water from their colliery into Borsdane Brook, the destruction of its uses by the same or similar by which the water in use for the cotton mill of agency for all purposes whatever. the plaintiffs had been corrupted. While their In the argument the ground was distinctly claim included the assertion of a prescriptive right, taken that immense public and private interests it was discussed mainly in view of the position of demand that the right which the defendants exerthe plaintiffs as sub-riparian owners, by the jus- cised in ejecting the water from their mine should tice who granted the injunction. In answer to the have recognition and be established. It was said suggestion that, in lieu of the remedy sought, l that in more than a thousand collieries in the damages should be awarded, it was said : “ The anthracite regions of the state, the mining of coal can only be carried on by pumping out the per- | grounds in all other directions. One invasion of colating water which accumulates in every tunnel, individual right would follow another, and it slope and shaft, and which, when brought to the might be only a question of time when, under the surface, must find its way by a natural flow to operation of a single colliery, a whole country some surface stream. It was urged that the law side would be depopulated. Judgment reversed. should be adjusted to the exigencies of the great Paxson, J., dissented. industrial interests of the commonwealth, and that the production of an indispensable mineral reaching to the annual extent of twenty millions
NOTES OF RECENT DECISIONS. of tons should not be crippled and endangered by adopting a rule which would make colliers an
WHEN AUCTIONEERS' WARRANTORS OF TITLE.swerable in damages for corrupting a stream into
Davie v. Blakely. Court of Appeals of Texas, 18 Alb. L. which mine water would naturally run. These
J. 114. Opinion by ECTOR, P.J.-An auctioneer, selling are considerations that are entitled to be well
personal property at public outcry, without disclosing weighed. In the trial of questions like this before the name of the owner of the property sold, is liable a jury they ought to be kept steadily in view. upon an implied warranty of title. The proprietors of large and useful interests FOREIGN ADMINISTRATOR-NOT LIABLE TO SUIT should not be hampered or hindered for frivo WHEN.-Magrar v. Irin. Supreme Court of Pennlous and trifling causes. For slight inconveniences
sylvania, 9 Pitts. L. J. 5, Opinion by MERCUR, J.or occasional annoyances they ought not to be
1. A foreign administrator, who has not administered held responsible, and in dealing with such com
in Pennsylvania, can not be sued in Pennsylvania, 2.
A, resident of Maryland, died, leaving bis eutire estate, plaints juries should be held with a steady hand.
consisting partly of bonds of Pennsylvania corpora. Only when some material and appreciable injury tions, to his wife, and naming his brother as executor; has been sustained should a recovery of damages the latter died prior to the testator. Letters of adagainst them be allowed. But there must be one ministration, with the will annexed, were granted to rule of law maintained for all men, and by that
his widow by the Orphans' Court of Cecil County, rule all men's rights must be tried and tested. The
Maryland; sbe filed an appraisement and inventory of
the estate, the court directed that she take it at the apview so earnestly and ably presented by the coun
praisement; she died and defendant was appointed adsel here was pressed upon Mr. Justice Mellor in
ministrator. While on a visit to Pennsylvania, plainthe trial of St. Helen's Co. v. Tipping, 11 H. L. tiff sued him. Held, that he could not sustain Cases, 642, a precedent in every way of interest his action in Pennsylvania. and value. After the verdict a motion for a new WHEN APPOINTMENT OF RECEIVER OF INSURANCE trial was heard and refused by the Court of COMPANY AUTHORIZED.-Atty.-Gen. v. Atlantic Life Queen's Bench, and on appeal to the Exchequer Ins. Co.. New York Court of Appeals, 18 Alb. L.J. Chamber and afterwards to the House of Lords
112. Opinion by FOLGER, J. 1. The question to be the judgment was affirmed. In charging the jury
determined, where the appointment of a receiver for the judge used this language: “ The defendants
an insurance company is asked is, are the assets of the
company sufficient to justify the belief that the comsay, if you do not mind you will stop the pro
pany may continue in the business of insurance with gress of works of this kind;' I agree that that is
safety to the public? If they are not sufficient a reso, because no doubt in the county of Lancaster, ceiver should be appointed. 2. On an application by above all other counties where great works have the attorney-general for the appointment of a receiver been created and carried on, works which are the
of an insurance company, it appeared that the assets of means of developing the national wealth, you
the company were short of a sum equal to the amount must not stand on extreme right and allow a per
of the outstanding policies by about one-tenth that
amount, that the capital had been entirely sunk, that son to say, 'I will bring an action against you for
a portion of the assets were of a kind not readily availthis, that and so on.' Business could not go on if able, and that its management was careless and not that were so. Everything must be looked at from such as to beget confidence. Held, that an order ap. a reasonable point of view; therefore the law pointing a receiver would not be set aside by this does not regard tritling and small inconveniences,
court. injuries which sensibly diminish the comfort, en
EASEMENT — WATER RIGHT APPORTENANT TO joyment or value of the property which is affect
LAND-TRESPASS.--Cave v. Crafts.-Supreme Court ed." In another part of the same lucid charge
of California, 1 Cal. L. R.359. Opinion by MCKINSTRY,
J.-1. The purchase of land carries with it all the apthe jury were instructed that, “ if a man by any
parent benefits and easements, as previously enjoyed, act, either by the erection of a lime-kiln or cop.
without any express reservation or grant, and the per works, or any work of that description, sends word “appurtenances" is not necessary to such conover bis neighbor's land that which is noxious and veyance. The grant of the principal carries the incihurtful, to an extent which sensibly diminishes
dent. 2. An “easement” to real estate granted is a the comfort and value of the property, and the
privilege off and beyond the local boundary of the land; comfort of existence on that property, that is an
in this case of conducting water through the lands re
tained by the common grantors of the plaintiffs and actionable injury." The consequences that would
defendants; and no subsequent act of their grantor flow from the adoption of the doctrine contended could divest them of their right. But to acquire : for could be readily foretold. Relaxation of legal right to water by adverse use for more than five years, liabilities and remission of legal duties to meet the use must be open, as of right, also peacable. If the current needs of great business organizations
disputed or interrupted, however slightly by the ownin one direction would be logically followed by the
ers, the acquisition of such right is prevented. 3.
The existence of an easement will support an action same relaxation and remission on the same
· or trespass.