mony: State v. De Wolf, 20 Am. Dec. 90, and note. See also Turney v. State, 47 Id. 74. To the point that where a witness is a stranger the party introducing him may, prior to any impeachment, show his character for truth, the principal case is cited in Tyler v. Todd, 36 Conn. 222; and it is held that on analogous principles, evidence as to the qualifications of a witness as an expert is admissible where he is called to testify as an expert.

TATE v. PROTECTION INS. Co.

[20 CONNECTICUT, 481.]

INSURERS ARE LIABLE FOR BARRATRY OF SECOND MATE SUCCEEDING TO COMMAND of a vessel, while on her voyage, by the death of the master and first mate, under a policy insuring against the barratry of the mariners, but not against that of the master.

ACTION on a policy of insurance for the loss of an insured vessel by the barratry of the second mate while in command. The point of the case appears from the opinion. The court below held that the defendants were liable, on the ground that the second mate was to be deemed one of the mariners. for a new trial.

Hungerford, T. C. Perkins, and Foster, for the motion.
Strong and Crump, contra.

Motion

By Court, WAITE, J. The plaintiffs, in this case, were insured against the barratry of the mariners, but not against that of the master. The vessel was lost by reason of the barratry of the second mate, committed after he had succeeded to the command, in consequence of the deaths of the first mate and the master, while the vessel was on her voyage and in foreign parts; and the question is, whether that was one of the perils insured against. The practice formerly was, to insure against the barratry both of the master and mariners. Eminent judges have considered it extraordinary that the barratry of the former should have ever crept into insurances, and still more so that it should have long continued in them: Earle v. Rowcroft, 8 East, 126; Nutt v. Bourdieu, 1 T. R. 323, 330; Grim v. Phoenix Ins. Co., 13 Johns. 451, 458.

Such a practice encourages collusion between the owner and master, and thereby opens a door for frauds upon the underwriters. It is said by Marshall, in his treatise on insurance, that at Rotterdam, the owners of ships were prohibited from insuring against the barratry of the master whom they themselves appoint, but were permitted to insure against that of the sailors, and of such a master as might succeed to the command

in foreign ports, without their knowledge, upon the decease or absence of the master originally appointed: 2 Marsh. Ins. 443.

In the present case, the barratry of the master, by the express terms of the policy, is excluded from the perils against which the plaintiffs were insured; but the former practice in relation to the barratry of the mariners remains unchanged. Had the vessel been lost, by the barratry of Marks, the second mate, while she continued under the command of the original master, it is conceded, that the defendants would have been. liable. Does the accidental circumstance, that the master had previously died, make any difference with that liability? Had the plaintiffs done any act, by which Marks had been promoted to the command, the case might be different. But here the plaintiffs have done nothing to affect their rights. Marks contracted to serve as second mate, and such he continued during the voyage, notwithstanding the deaths of his superior officers, by reason of which, additional duties were cast upon him. He was not the confidential agent of the owners, as was the case with the master appointed by them.

In England, where a master can not sue, in a court of admiralty, for his wages, it has been holden, that a mate who succeeds to the command of a ship, upon the death or absence of the master, may sue in that court for his wages during the whole voyage. But for his extra services, performed as commander of the ship, he must resort to the common-law courts. And the reason assigned is, that having contracted to serve as mate, that character remains, although a new character is superinduced: Read v. Chapman, 2 Stra. 937; The Favourite, 2 Rob. Adm. 232. "He does not," says Judge Story, "cease to be mate, but has thrown upon him cumulatively the duties of master. He is still mate, acting as master pro hæc vice:" The Brig George, 1 Sumn. 151.

Such being the situation of Marks, at the time when the barratry was committed, it ought to be treated as the act of a mariner, for which the defendants made themselves responsible. Such a construction, we think, is in conformity with the spirit and meaning of the policy. The reasons for not insuring against the misconduct of a master whom the owners appoint, do not apply to a case like the present. The danger of collusion does not exist.

A new trial therefore is denied.

In this opinion the other judges concurred.
New trial not to be granted.

BARRATRY, WHAT Constitutes, and INSURANCE AGAINST LOSS FROM: See Wilcox v. Union Ins. Co., 4 Am. Dec. 480; Brown v. Union Ins. Co., 5 Id. 123; Cook v. Commercial Ins. Co., 6 Id. 353; Wiggin v. Amory, 7 Id. 175; Taggard v. Loring, 8 Id. 140; Millandon v. New Orleans Ins. Co., 13 Id. 358; Mariatigui v. Louisiana Ins. Co., 28 Id. 129; American Ins. Co. v. Bryan, 37 Id. 278.

ROATH V. DRISCOLL.

[20 CONNECTICUT, 533.]

EQUITY SHOULD NOT INTERFERE BY INJUNCTION WHERE RIGHT IS DOUBTFUL or the investigation of a jury as to facts in dispute is required. WATER STANDING OR PERCOLATING IN THE SOIL IS PART OF IT, constituting one of the natural advantages of the land, which each owner is entitled to use as fully and freely as he can by sinking wells.

PRIOR OCCUPANCY OF WATER PERCOLATING IN THE EARTH gives no exclusive right as against owners of adjacent land.

DEFENDANT DIGGING RESERVOIR ON HIS LAND, WHICH LOWERS WATER IN PLAINTIFF'S WELL, previously made on adjoining land, so that it can not be used, there being no stream of water running into or from either excavation, and it not appearing whether the diminution of water in the plaintiff's well is produced by cutting off or diverting subterranean supplies, or by draining water from it, can not be enjoined, there being no evidence of improper motive in the defendant's proceedings.

BILL for an injunction to restrain a diversion of water from the plaintiffs' well. The facts upon which the case was reserved for the decision of the court appear from the opinion.

Strong, for the plaintiffs.

Foster, for the defendant.

By Court, ELLSWORTH, J. This is an application to a court of equity, to prevent the defendant from using a certain reservoir of water, situate upon his premises. The court, doubtless, possesses the necessary power; but it is not to be exercised as a matter of course, even when the plaintiff suffers some injury to his real estate. Whenever the right is doubtful, or needs the investigation of a jury, upon facts in dispute, a court of equity is always reluctant to interpose its summary authority; for it is rather the duty of the court to protect acknowledged rights, than to establish new and doubtful ones. We think the case, even if its merits were less equivocal than they are, belongs to that class which renders the interposition of equity inexpedient and questionable; its multifarious and peculiar facts commend it to a legal investigation.

But as the case has been discussed on its broadest merits, and

is one of novelty, and some practical importance, we are not unwilling in giving judgment, to pass upon these merits, and, if possible, put an end to the subsisting controversy. It appears that the plaintiffs, for more than fifteen years before the com.mencement of this suit, were the owners of a reservoir of water situate in the north-east corner of their lot, made by excavating the ground a few feet below the surface. In this reservoir, water stood sufficient for the use of the plaintiffs' cattle; but there never was any stream of water running into or from it. The water percolated through the earth, but never rose to a level with the adjoining land. Within fifteen years before this suit, the plaintiffs had opened another reservoir at a short distance from the first, which they call a well, which was of the depth of a few feet, and at a place higher up the hill than the first. The water stood in the well somewhat higher than it did in the first reservoir, but never rising so as to run off; and no stream was known to run into it. The plaintiffs inserted an aqueduct into the well to carry water, upon the principle of the siphon, over higher ground, to a large cistern on other land, to supply themselves and their neighbors with fresh water, which they did at considerable pecuniary profit.

Recently, the defendant, on his lot adjoining the plaintiffs', made a small excavation, in which the water appears and stands naturally at a level below the water in the plaintiffs' well; but no stream naturally runs into or from the defendant's said basin; nor does the water rise to the surface of the land. From this basin the defendant, by a trough, carries the water to his lands adjoining. It is found that the defendant is acting from honest motives to advance his interests, without any design unnecessarily to injure the plaintiffs. It is further found, that since the defendant made his basin as aforesaid, the consequence and effect has been, that water has not entered and stood at sufficient height in the plaintiffs' well to enable them to draw water through their pipes to their cistern. This is the injury complained of.

Now, although this effect is found to result from the defendant's acts, yet it is not found how this is the result; and the judge expressly says he is not able to find whether the water which before entered the plaintiffs' well was interrupted and prevented from passing into the well, by reason of the defend. ant's basin; or whether the water would naturally first pass into the basin, and then into the plaintiffs' land; nor indee where was the origin of the water, or what its progress, or man

AM. DEO. VOL. LII-23

ner of percolating through the earth, nor where was its natural outlet, if there was any at all.

Now, two things are to be observed, in deciding upon the foregoing facts: 1. To lay out of the case any artificial use of water, for more than fifteen years, by which the plaintiffs have acquired a new right; for the plaintiffs' well which has caused their first reservoir to become dry (as is the fact) is of less than fifteen years' standing; and, 2. The mode of the injury can not be ascertained from testimony in the case.

The case, when viewed most favorably for the plaintiffs, is simply this. Have they, by mere prior occupancy, acquired an advantage over the defendant, in the use of this water? Or, in other words, can one of two adjoining proprietors, by first opening a watering place, prevent other persons from doing the same on their own land, though by so doing water is prevented from percolating the land so as to supply the first-made reservoir?

We have already said that this case does not involve a right acquired by artificial use for fifteen years; but in the following reasons it will appear, that as to adjoining proprietors who open the earth for reservoirs of water, this distinction is not the rule; for nothing is gained, by a mere continued preoccupancy of water under the surface. Why should any advantage be gained by preoccupancy? Each owner has an equal and complete right to the use of his land and to the water which is in it. Water, combined with the earth, or passing through it, by percolation, or by filtration, or chemical attraction, has no distinctive character of ownership from the earth itself; not more than the metallic oxides of which the earth is composed. Water, whether moving or motionless in the earth, is not, in the eye of the law, distinct from the earth. The laws of its existence and progress, while there, are not uniform, and can not be known or regulated. It rises to great heights, and moves collaterally, by influences beyond our apprehension. These influences are so secret, changeable, and uncontrollable, we can not subject them to the regulations of law, nor build upon them a system of rules, as has been done with streams upon the surface. Priority of enjoyment does not, in like cases, abridge the natural rights of adjoining proprietors. No one, building upon the line of his lot, can prevent his neighbor from digging a cellar, though thereby his building may be seriously endangered and injured. These principles are elaborately discussed and decided in Thurston v. Hancock, 12 Mass. 220 [7 Am. Dec. 57]; Panton ▼. Holland, 17 Johns. 92 [8 Am. Dec. 369]; Callender v. Marsh,