of the emptying of a reservoir, belonging to a third person, upon the defendants' premises, and of an obstruction in the drain below them, was to force water through the sluices into the defendant's reservoir, and so cause an overflow thence on the plaintiff's land. In an action for damage occasioned thereby, it was shown that the defendants had no control over the main drain or the other reservoir, and no knowledge of the circumstances that caused the overflow, and that the sluices were maintained so as to prevent overflow under ordinary circumstances. It was held that the defendants were not liable.

This case to some extent resembles that of Nichols v. Marsland, 23 W. R. 693; L. R. 10 Ex. 255; 4 Cent. L. J. 319, as to which upon a previous occasion we made some remarks. The contention of the plaintiffs in both cases was an attempt to carry the doctrine of Fletcher v. Rylands, L. R. 3 H. L. 330, a step further. In both cases it was held that the doctrine of Fletcher v. Rylands was not applicable. The result tends to show that some of the expressions used in the judgment of Mr. Justice Blackburn in Fletcher v. Rylands, in the Exchequer Chamber, and adopted in the House of Lords (expressions which have become houshold words, if the term is admissible, in the law courts with regard to cases of this nature), may be applied so as to have too wide a bearing if taken apart from the facts to which in that case they related. It is necessary to state shortly the facts of Fletcher v. Rylands in order to make what we have to say intelligible. In that case A was the lessee of certain mines; B was the owner of a mill. B desired to construct a reservoir, and employed competent persons-an engineer and a contractor-to construct it. A had worked his mines up to a spot where there were certain old passages of disused mines; these passages were connected with vertical shafts which communicated with the land above, and which had also been out of use for years, and were apparently filled with marl and the earth of the surrounding land. When the water was introduced into the reservoir it broke through some of the shafts, flowed through the old passages, and flooded A's mine. It was held that A was entitled to recover damages from B in respect of this injury. In the House of Lords it was taken that the engineer and contractor had been guilty of negligence; but the decision in the case does not seem to have turned on that, but on the principles enunciated by Mr. Justice Blackburn in the Exchequer Chamber. In the court of Exchequer a good deal of the judgment had turned on the distinction between trespass and case, and the necessity of negligence to form a cause of action when the damage was not caused by an act in itself wrongful. But Mr. Justice Blackburn put the case on broader grounds. He said, "We think the true rule of law is that the person who, for his own purposes, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of the sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule as above stated seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water of his neighbor's reservoir, or whose cellar is invaded by the filth of his neighbor's privy, or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor who has brought something on his property which was not naturally then harmful to

others,so long as it is confined to his property, but which he knows will be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues, if he does not succeed in confining it to his property. But for his act in bringing it there, no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this, we think, is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches."

The doctrine thus enunciated with regard to the liabilities of a person in respect of dangerous matters brought by him on to his own land must be understood as subject to certain limitations, and, broad and clear as the principle seems, there is somewhat of difficulty about it when tested by reason. To begin with, it is clear that certain exceptions must be made-such, for instance, as those that would come under the head of the exceptions suggested by Lord Blackburn himself-viz., cases where the act of God was the immediate cause of the release of the dangerous matter. Nichols v. Marsland comes under this exception. Again, cases where the damage is caused by the wrongful act of a third party may be exceptions. Lord Justice Bramwell suggested in Nichols v. Marsland the case of damage done by water in a cistern in which a mischievous boy bored a hole. The ground upon which Fletcher v. Rylands is put in Lord Justice Bramwell's judgment in Nichols v. Marsland is this: He says, "Then the defendant poured the water into the plaintiff's mine. He did not know he was doing so, but he did it as much as though he had poured it into an open channel which led to the mine, without knowing it. Here the defendant merely brought it to a place whence another agent let it loose." Similarly, Lord Justice Mellish, in the same case in the court of appeal, commenting upon Fletcher v. Ryland, says: "If, indeed, the damages were occasioned by the act of the party, without more, as when a man accumulates water on his own land, but, owing to the peculiar nature or condition of the soil, the water escapes and does damage to his neighbor, the case of Fletcher v. Rylands establishes that he must be held liable. But the present case is distinguished from that of Fletcher v. Rylands in this, that it is not the act of the defendant in keeping this reservoir-an act in itself lawful-which alone leads to the escape of the water and so renders wrong. ful that which but for such escape would not have been wrongful."

The effect of the cases would, thus far, seem to be that where a person's act in altering the natural state of things on his land directly injures another's property, he is responsible. We mean by direct injury, one which is the consequence of the act in the necessary course of things, and without the intervention of any but ordinary causes. When the injury is not immediate, but other causes intervene, the intervention of which is extraordinary, the damage is too remote--it is not the direct natural consequence of the act done. We see considerable difficulty, as a matter of reason apart from the decisions, in determining the true principle which ought to govern these cases. Apart from the existence of any negligence, we must confess to having felt considerable difficulty with regard to the decision in Fletcher v. Rylands, though we know that that decision has always been considered as one of the greatest authority. A man makes a reservoir on what, ex hypothesi, so far as he knows, he is entitled to suppose to be solid ground, and by reason of the exist. ence of artificial subterraneous channels, the water finds its way into a neighboring mine-owners mine. The maker of the reservoir is held responsible, because, though there was nothing prima facie unlaw ful in his act, he brought something on to his land

which was not there before, and without any fresh intervening cause of an extraordinary nature, but in the natural and necessary course of things, as the land then existed, it escaped on to his neighbor's land and did damage. It is to be observed that it is not as if the passages through which the water escaped were natural passages; they were artificial. Somebody had already altered the natural state of things. So that it would seem to come to this: if a man makes a reservoir, and afterwards, the mine-owner mines, and the water escapes by reason of his workings into his mine, clearly no action will lie. But if the mine-owner is first in the field, and makes his workings first, then the surface owner can not make his reservoir if the water would escape into the workings of the mine without compensating the mine-owner, even though he did not know, and had no reason to think, that there was any possibility of damage. This is a striking instance of the truth of the philosophical theory that assigns the origin of property to the fact of priority of occupation.

We come to the conclusion that Fletcher v. Rylands must be sound law, though not without some reluctance and difficulty. The truth is, it is an instance in which, of two parties equally innocent of negligence or intention to trespass on the other's property, one must suffer, and it is, perhaps, not wonderful that it should be difficult to ascertain which it is to be. It seems inevitable in the nature of things, that the lawful use by one landowner of his property should limit, to some extent, the power of the adjoining owner to do that which per se would be lawful with his property. This is in the nature of a reward to the earlier application of industry and enterprise, and so it is for the public benefit that it should be so. Unless the law were so, there would be no security for the results of enterprise and industry. But, granting this, and allowing that those who alter the existing state of things must be liable to the extent to which the decision in Fletcher v. Rylands applies, it may be said, Why introduce the qualifications applied in the cases of Nichols v. Marsland and Box v. Jubb? It may be argued that a man who takes upon himself to alter the existing state of things must be responsible for all the consequences, even though connected with his act by an unusual cause or causes intervening. A man, for instance, makes a very extensive reservoir; an extraordinary flood comes. If the reservoir had not existed no damage whatever might have happened to his neighbor, but the combined result of the reservoir and the flood is that the neighbor's house is thrown down. Why, in natural justice, should not the maker of the reservoir be as much responsible, in this case, as the defendant in Fletcher v. Rylands? The answer would seem to be, that if a man uses due skill and diligence and reasonable caution, he is entitled to alter the natural state of things, if he does not thereby directly and necessarily injure his neighbor's property, even although the result may, by reason of the intervention of an unusual cause, prove disastrous to his neighbor; and the reasonable ground for his being entitled to do Bo is, that otherwise the beneficial use of property and the devolopment of its value by enterprise and industry would be unduly restricted. If a landowner could not alter the natural state of things and construct anything, without incurring the risk of liability for any damages occasioned by the unlawful act of a third person, or the unusual operation of the forces of nature in connection with such altered state of things, there are few alterations of an extensive nature that a landlord could safely make.-Solicitors' Journal.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF NORTH CAROLINA. June-July, 1879.

EVIDENCE - DECLARATIONS - Declarations of a vendor of land as to the fraudulent character of a deed executed by him, made after its execution but while he still remained in possession, are competent evidence against the vendee. Parol proof is admissible upon the identity of land described in a deed executed by a sheriff. Opinion by ASHE, J.-Hilliard v. Phillips.

MECHANIC'S LIEN-WHEN ATTACHES.-1. No "laborer's lien" has the effect of a lien upon lands, unless the notice of the lien is filed in the office of the clerk superior court. 2. The lien for material furnished does not attach on lumber sold, which was not used in the erection or repair of a building, unless it was sold with an understanding that it should be so used. Opinion by ASHE, J.-Lanier v. Bell.

COMMON CARRIER-CONTRACT LIMITING LIABILITY-UNREASONABLE REGULATION.-A commor carrier can not by a special notice, brought home to the knowledge of the shipper of goods, much less by general notice, nor by contract even, exonerate itself from the duty of exercising ordinary care and prudence in the transportation of goods, though it may, by special contract, or notice brought home to the knowledge of the shipper, restrict its liability as an insurer, when there is no negligence on its part. Where the jury finds as a fact, that the common carrier has been guilty of negligence, a stipulation in the bill of lading that the damages must be assessed before the removal of the goods from the station, or that the claim for losses must be made within thirty days, is unreasonable and void. Opinion by ASHE, J.-Capehart v. Seabord R. Co.

ADMINISTRATOR AND GUARDIAN PAYMENT OF DEBTS-SURETIES.-Where an administrator is also the guardian of a ward, to whom his intestate was indebted, whatever sum came into the hands of the administrator which was applicable to the debt due the ward is immediately transferred, eo instanti, by operation of law, to him as guardian, without any act done by him as administrator, and the sureties on the guardians bond become responsible therefor,to the exoneration of the sureties on the administration bond, Where such administrator erroneously paid over a portion of the fund applicable to the debt due the ward, to the intestate's other creditors, the sureties on the guardian bond can follow such fund into the hands of those who participated in the misapplication. Opinion by SMITH, C. J.-Ruffin v. Green.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

July, 1879.

MISREPRESENTATIONS-EVIDENCE.-1. Statements that a railroad co.npany was able to lay its tracks and provide rolling stock and pay all bills contracted, and that the stock was not for sale, and could not be bought anywhere but of the defendant, made by the president of the corporation to one who was about to purchase stock, are statements which the jury would be warranted in finding were representations of facts of which he professed to have knowledge, and not the

expression of an opinion or estimate. Morse v. Shaw, 124 Mass. 59; Homer v. Perkins, 124 Mass. 431; Millikin v. Thorndike, 103 Mass. 385; Litchfield v. Hutchinson, 117 Mass. 197. 2. The plaintiff also offered to prove that at the time of the sale, and for the purpose of inducing him to buy, the defendant falsely stated that he knew there was money enough in the treasury of the company to purchase rolling stock for the road, provide and lay tracks and furnish all necessary equipments: Held, that if the defendant made such representations as representations of fact and not of opinion, then the falsity of the representations might be proved by competent evidence. Opinion by COLT, J.-Teagin v. Irwin.

SEDUCTION EVIDENCE.-1. In an action for the seduction of a daughter, the plaintiff must prove that he was entitled to the service of the daughter at the time of the injury, and that the ability of his daughter to render service was impaired by the defendant's unlawful act. 2. Evidence that the daughter appeared strong and well before the alleged seduction, and that afterwards she became nervous and excitable and did not appear to be herself, though no pregnancy or disease ensued, will justify the jury in finding an incapacity to work as the proximate effect of the seduction. 3. When the plaintiff has not parted with his right to his daughter's service, it is sufficient to prove that she resides with him and is under age, or that, if she resides and is employed elsewhere, that he has not lost his right to her service. Opinion by COLT, J.-Blagge v. Ilsley.

TRUST FUND · STATUTE OF LIMITATIONS-EVIDENCE-INTEREST.-In an action of contract, the court, sitting without a jury, found that the plaintiff's intestate, who was living out of the State in Sep. tember, 1852, sent to the defendant, who was living here, $900, to keep and invest for the intestate; that defendant received and invested the money in his own name, keeping it separate from other moneys for two or three years, and after that, mingling it with his own money in various investments, and keeping no sepa rate account of the income or principal, and treating it as his own; that defendant never heard from the intestate after the receipt of the money; that there was no direct evidence of any express promise or agreement on the part of the defendant to hold or invest this money for the intestate; that the plaintiff gave bonds and notice of his appointment as administrator in September, 1874, and in the spring of 1876 made demand on defendant for said $900 and its accumulations. Upon exceptions to the rulings of the court, it was Held, 1. That the action was not barred by the statute of limitations. 2. That an express trust in personal property might be created and proved by parol. 3. That the defendant was chargeable with interest before the time of the plaintiff's demand. 4. That the defendant was entitled to show by his own testimony the purpose for which he supposed the money was sent to him, and the understanding with which he took it, in order to rebut the inference which the plaintiff sought to have the court draw from the circumstances which he put in evidence. Opinion by SOULE, J.-Davis v. Coburn.

SAVINGS BANK- PAYMENT TO ONE PRESENTING DEPOSIT BOOK.-The plaintiff's testatrix deposited money in a savings bank, receiving a deposit book which contained by-laws of the bank, declaring that it would not be responsible for loss sustained when a depositor had not given notice of his book being stolen or lost, if such book should be paid in whole or in part on presentment, and that it did not undertake to be answerable for the consequences of mistake as to identity, if it paid to a wrong party upon the bank book being presented. She also signified her assent and subscribed her name to the same by making her

mark. She was unable to read, but that fact was unknown to the defendant. The bank paid the amount due on said book to a person unknown, who, after the death of the testatrix, presented the book for payment, representing herself to be the person therein named, the bank then believing her to be the original depositor. After the death of the testatrix, and before payment by the bank, the executor published the usual probate citation, addressed to the heirs at law, next of kin, and all persons interested in her estate, to appear and show cause, if any, against the probate of her will; but the bank had no actual notice of her death. In a suit by the executor against the bank to recover said amount, it was held, that the by-laws were reasonable and proper; that the plaintiff's testatrix was bound thereby; that her death was not a fact which the defendant was bound to know; and that the publication of the citation of the probate court was not notice to the defendant as matter of law. Opinjon by COLT, J.-Donlan v. Provident Institution for Savings.

SUPREME COURT OF MICHIGAN.

June Term, 1879.

SETTLEMENT UNDER DURESS.-A settlement between debtor and creditor must be considered as made under duress, where the creditor has stopped the payment of moneys due the debtor from third parties, and where the debtor is compelled to make it in order to remove the stoppage and thus avert his financial ruin; and if the settlement thus forced was not in accordance with the legal rights of the parties, it may be set aside. Opinion by MARSTON, J.—Vyne v. Glenn. ACTION ON NOTE-LEGAL TERMS NOT CHANGEABLE BY PAROL MAKER'S PROMISE TO PAY FOR CO-MAKERS-OFFICER CAN NOT ACT IN ANTAGONISTIC CAPACITIES.-The makers of a note were directors of a railroad, and it was payable to the order of the president of the road, who was also president of a bank to which the note was transferred for value,before maturity. The bank sued defendant in assumpsit to recover a balance claimed to be due on the note, of which he was one of the makers. Held, 1. That evidence to prove an agreement that the makers of the note should not be personable liable in accordance with the terms thereof, and that it should be paid only out of the assets of the railroad company, was incompetent. 2. A promise made by one of the makers with his co-makers that in consideration of certain contracts being entered into with reference to the construction of the road, he would take certain subscriptions and notes received by the company, and would pay this note and release his co-makers from liability, could not affect their liability where the creditor's consent was wanting. 3. The bank president could not assume to act for the bank and consent to such arrangement so as to bind the bank; for he was liable as co-maker and indorser, and could not act in a double and antagonistic capacity. Stevenson v. Bay City, 26 Mich. 46. Opin. ion by MARST N, J.-Gallery v. National Exchange Bank of Albi n.

LAND CON RACT-TENDER OF DEED-Proof of TITLE EVIDENCE THAT MERITS WERE TRIED IN FORMER SUI-Action for the purchase-price of lands sold by contr cts, to be paid for in annual installments, all due when suit was brought. The vendor had tendered the customary warranty deed and demanded payment. Held, 1. That where a contract obligates the vendor, when the purchase-price is paid, to “execute and deliver" to the vendee "a good and fficient warranty deed," it is enough for the vendor to tender

a deed sufficient in form, without showing that he has at the time a title which the deed would convey. In the absence of any showing, the presumption will be that the vendee satisfied himself of the title when he made his bargain. Dwight v. Cutler, 3 Mich. 566; Allen v. Atkinson, 21 Mich. 361. 2. The evidence does not show that the merits were not tried in the former suit brought by the vendor on the contracts, after the installments had fallen due, wherein final judgment passed against plaintiff. The evidence given, all related to the tender of a deed; but it does not show that the former case turned upon the want of tender. When the subject-matter has confessedly been in litigation before, the evidence that the merits were not passed upon must exclude all the hypothesis. Opinion by COOLEY, J.-Baxter v. Aubrey.

SUPREME COURT OF ILLINOIS.

[Filed at Ottawa, June 21, 1879.J

EJECTMENT ADVERSE POSSESSION FOR TWENTY YEARS WHETHER TIME RUNS FROM DATE OF DEED OR OF TAKING POSSESSION.-This was ejectment by appellee against appellant for a certain part of a lot in the city of Chicago. Appellant defends as tenant to the heirs at law of one Frantz, deceased. Appellee and the heirs at law of Frantz, deceased, are seized in fee simple of adjoining lots, that of appellee being numbered four and that of appellant's lessor numbered three. The controversy grows out of a dispute as to the location of the boundary line between these lots. One M originally owned both lots. In 1846 he made a contract of sale of lot three to one H, who is since deceased, and placed H in possession of the lot. H did not finish making payment for the lot and receive a deed therefor until several years after, but his possession, claiming to be owner under his contract with M commenced in 1846, and was continued unbroken in him until his death, and after his death in his heirs at law until transferred to Frantz, and possession was in him and his heirs continuously, until the bringing of this suit in 1868-a period of more than twenty-one years. Before M sold, there was a fence on what was supposed to be the dividing line between lots three and four, which fence has remained in the same place. Counsel for appellee insist that the limitation by reason of adverse occupancy, only commences to run from the date of M's deed to H, which is less than twenty years before the commencement of this suit. SCHOLFIELD, J., says: "Appellee's position is untenable. As early as 15 Ill. 271, it was said: 'It is enough that a party takes possession of premises claiming them to be his own, and that he holds the possession for the requisite length of time, with the continual assertion of ownership. If he does not make the entry under proper title, his possession is considered adverse only to the portion actually occupied. In such case he acquires no interest beyond the limits of his enclosure.' See 86 Ill. 35; 73 Ill. 439; 65 Ill. 499; Washb. on Real Prop. (3d ed.) Vol. 3, p. 145, § 48, et seq." Reversed.-Schneider v. Botsch. INSURANCE-CONDITION IN POLICY BARRING SUIT AFTER TWELVE MONTHS--WHEN IT BEGINS TO RUN. -This was an action in a policy of insurance brought by appellants against appellee. To the declaration appellee filed a plea of the statute of limitations, that the suit was not brought within twelve months from the time the loss occurred, according to the terms and conditions of the policy. Demurrer interposed and sustained by circuit court. This was reversed by the appellate court, and now the case comes here on ap

peal. The policy contained provisions that loss was to be paid sixty days after due notice and proofs of the same, and that no suit or action against this company for the recovery of any claim by virtue of the policy shall be sustainable in any court until after an award fixing the amount of claim, unless such suit shall be commenced within twelve months next after the loss shall occur. The fire, producing the loss, occurred on the 14th of July, 1874, and proofs were made on the 21st of July, 1874. This action was commenced on the 13th of September, 1875. The action was not brought within twelve months after the loss occurred, but within twelve months from the expiration of sixty days after the loss. WALKER, J., says: "Appellants contend that the twelve months did not begin to run. until the expiration of sixty days after the occurrence of the fire. All persons know that in giving force to laws and contracts of every description, the intention. as therein expressed must govern. According to this rule we are wholly unable to perceive how the meaning of this language can be misunderstood. When did the loss occur? At the time of the destruction by fire. It is, however, insisted that the clause in the policy that the loss was to be paid sixty days after due notice and proof of the same, limits and controls the after inserted condition prohibiting the bringing an action more than twelve months after the loss should occur. We are unable to perceive that it controls this condition. We are referred to authorities which are supposed by appellants' counsel to hold that similar language in other policies means the assured may sue at any time within twelve months after the sixty days. reserved by the company to make payment has expired. We have examined the authorities referred to. and think they fail to sustain his position." Affirmed. -Johnson. v. Humboldt Ins. Co.

INJUNCTION-COLLECTION OF TAX-FRAUDULENT ASSESSMENT-IRREGULAR ASSESSMENT NO GROUND FOR EQUITABLE RELIEF-CERTIFICATE OF APPELLATE COURT-This is an appeal from a final order of the Appellate Court for the First District, reversing the decree of the Superior Court of Cook County, and dismissing the bill, which had been filed in the latter court by appellants, praying an injunction to restrain the collection of a portion of personal property taxes for the year 1875, assessed against appellants. The only ground of relief under the bill is that of fraudulent assessment of the property taxed at too high a rate. The only question of doubt arising is upon the effect to be given to the certificate of the appellate court as to its finding of facts. The order reads: "And as to our

finding of facts, we hereby certify that we find the facts as charged in the complainant's bill, but that said facts do entitle said complainant to equitable relief." SHELDON, J., says: "As there is an allegation in the bill that the assessor fraudulently assessed the property at the value he did, it is contended by appellant that, according to the language of the certificate, the appellate court found the assessment to be fraudulent. If that were so, and it was to be taken as a fact in the case that the assessment was fraudulent, it would follow that it was error to order a dismissal of the bill, as this court has declared that a court of equity will entertain a bill to enjoin the collection of a tax when property has been fraudulently assessed at too high a rate. 24 Ill. 489; 76 Ill. 561; 83 Ill. 602. But we can not give to the language as to the finding of facts the effect claimed. The words used, as we understand, mean that the facts were found as charged in the bill, but not the conclusion of law from the facts, viz.: fraud. From the record we find that it fails to show any case of fraudulent assessment, but one only of an excessive valuation, and irregularity in the making of the assessment. On the ground only of a valuation being excessive, equity will not interfere to restrain the collection of a tax. 68 Ill. 510; 76 Ill. 398." Affirmed. Gage v. Evans.