cleaned out the spring and filled up a portion of the channel with earth, completely stopping the flow of water on plaintiff's land. Plaintiff removed the filling. This was done several times, and finally defendant, after filling the channel, placed heavy saw logs across said channel and forcibly prevented plaintiff from removing them or the filling. The referee found these facts and that there was at all times sufficient water in said spring, if permitted to flow in its natural channel, or in the channel as it was before the filling in of the same by defendant, to have furnished defendant sufficient for his uses and allow a flow on plaintiff sufficient for his stock, and that while the flow was obstructed plaintiff was compelled to pump water from wells for his cattle at considerable expense. He found as conclusion of law that the stream from the spring to the lands of plaintiff was an ancient watercourse, and that plaintiff had a right to the flow of the water from such spring unobstructed as it has always been accustomed to flow. J. A. Hathaway, for applt. C. W. Avery, for respt. Held, That upon the facts found by the referee his conclusion of law is correct. 35 Hun, 55. See also 86 N. Y., 140; 5 T. & C., 163. Upon all the facts found by the referee it is apparent that the stream which passed over plaintiff's lands constituted an ancient watercourse and that defendant had no right to cut it off, or unreasonably obstruct the flow of the water and that his wrongful acts in preventing the flow of water across the lands of plaintiff entitled plaintiff to such damages as he sustained. 58 Barb., 413; 61 id., 130. Nor had defendant any right to divert the water from the stream where plaintiff had been accustomed to use the same. 17 Hun, 361; 83 N. Y., 400; 12 Wend., 330; 30 Conn., 180. Bloodgood v. Ayres, 37 Hun, 356; Village of Delhi v. Youmans, 45 N. Y., 362, distinguished. Judgment affirmed, with costs. Opinion by Hardin, P.J.; Boardman and Follett, JJ., concur. SAVINGS BANKS. LOANS. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. The Auburn Savings Bank v. Jacob Brinkerhoff. Decided April, 1887. The advance by a savings bank of the full face of a promissory note, reserving nothing, is not a discount of the note. A loan by a savings bank upon a bond and mortgage, otherwise valid, is not vitiated by the fact that notes were taken as security in addition to the bond and mortgage. Disobedience of the statutory requirements that savings banks shall loan money on first mortgages, and that the value of the mortgaged premises shall be certified, is not available to a debtor as defense to an action on his bond. Under the circumstances of the case, Held, that the defense of suretyship was not established. Motion by plaintiff for new trial on exceptions at Circuit ordered heard here in first instance. Action on a bond executed by defendant to B. and G., Dec. 16, 1873, and by them assigned to plaintiff, conditioned for the payment of $3,400 on June 1, 1875, with semi-annual interest. The bond was accompanied by a real estate mortgage of even date, collateral thereto, executed by the obligor to the obligees, and both were transferred by the obligees to plaintiff as security for payment of two promissory notes made by the assignors to defendant's order and indorsed by him, one for $1,000, dated Dec. 1, 1873, the other for $2,400, dated Dec. 20, 1873, each payable June 1, 1875, with semi-annual interest. The notes and the bond and mortgage were transferred to plaintiff in consideration of the loan of $3,400 made by plaintiff, and as security for repayment thereof. The full face of the notes was advanced by the bank, and nothing was reserved. The assignment of the bond and mortgage to plaintiff covenanted that there was then to become due thereon $3,400, with interest from their date. Plaintiff is a savings bank under Chap. 92, Laws of 1849. Its charter provides that its funds or deposits may be loaned on improved, unincumbered real estate, worth at least double the amount to be secured. The general statutes relating to savings banks require that the real estate upon which loans might be made should be unincumbered. Laws of 1875, Chap. 371, § 26, subd., 5; Laws of 1882, Chap. 409, § 260, subd. 5. The mortgage in this case was upon real estate which was covered by eight prior mortgages; and it is not shown that there was a compliance with the statutory requirement that no investment in bond and mortgage shall be made by a savings bank except upon the report of a committee, etc., who shall certify to the value of the premises. Defendant admitted on the stand that he was not a surety for B; and B. testified that he never had a penny of the loan, and was surety for defendant; that he signed the $2,400 note at the request of defendant, who stated that he was in need of money, and asked B. to go security with G. for $3,400, and promised to give them a bond and mortgage. B. consented and the papers were accordingly drawn and executed. Upon the question whether defendant was surety for G. the only oral testimony is that of defendant. It having been proved that G. was dead, defendant was asked as a witness in his own behalf: "At the time you indorsed that note, or at the time you executed the bond and mortgage did you receive anything for it? Did you ever receive any money upon this note, or mortgage, or bond, from anybody?" To which he was allowed to answer, and said "No." W. E. & F. E. Hughitt, for plff. Woodin & Warren, for deft. Held, It does not appear that the notes were discounted. 17 N. Y., 507; 32 Hun, 270. The loan was made upon the three securities-the notes, the bond, and the mortgage. Plaintiff was authorized to lend on bond and mortgage, and if the loan was in other respects valid, it was not vitiated by taking the notes in addition to the bond and mortgage. The provisions requiring the mortgage to be a first lien, and the value of the mortgaged premises to be certified, are intended for the protection of depositors and others whose funds are held and managed by the bank as a trustee. The irregularities in that regard do not furnish a defense to the bond. 30 Hun, 638; 96 U. S., 640; 98 id., 621; 103 id,, 99. It is not shown that defendant executed the bond as surety of the obligees. The inference to be drawn from that instrument is that he was their debtor. If the form of the note raises the presumption of suretyship, it is not conclusive, and is overcome by other evidence. Defendant's evidence above set out was improperly admitted under § 829 of the Code. Comstock v. Hier, 73 N. Y., 280, and Kale v. Elliott, 18 Hun, 198, distinguished. Assuming that defendant was a surety, yet as in view of his admission already referred to he is to be regarded as the surety of G. only, his defense fails for another reason. The printed case shows that during the trial plaintiff's counsel stated that Mr. Cox, of defendant's counsel, had stipulated orally before trial that at the time when defendant requested plaintiff to prosecute G. was insolvent, and that consequently plaintiff was not prepared with evidence on that point, to which Mr. Cox assented. The case states that no further evidence was given on the subject of G.'s insolvency. Defendant was bound by the stipulation. 52 N. Y., 306. In that view, defendant suffered no harm from plaintiff's omission to sue. New trial ordered, costs to abide event. Opinion by Smith, P.J.; Haight and Bradley, JJ., concur; Barker, J., not voting. EASEMENT. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Mary J. Gilligan, respt., v. Geo. Feuscher et al., applts. Decided April, 1887, Where the common owner of a parcel of land constructs an artificial channel for drainage of a particular portion of the lands through his lands and afterward sells the said lands in parcels, and sells first the lot intended to be drained, and afterward such other lands with such channel operative, such lot so drained becomes the dominant estate, and the residue of the lands through which said channel passes servient, and the owner of such dominant estate through mesne conveyances from such common owner has a right to have such channel maintained and preserved, and has a right of action against any person obstructing the same. The purchasers of the lots through which such channel runs are to be deemed to have purchased the same burdened with the easement. The owner of the easement has a right to go upon the premises so burdened for the purpose of making the repairs necessary to the preservation of its usefulness; and the owners or occupants of the servient tenements have no right to impair the usefulness of the channel by the cultiva tion of the lands through which it runs. Appeal from judgment entered on verdict at Cattaraugus Circuit, and from order denying a new trial. ilege to plaintiff of going on to the J. R. & M. B. Jewell, for applts. Held, In view of the facts which the jury were permitted to find, and which we must assume that they did find, this ditch was operative as a provision for the drainage of these lands at the time of the conveyance from the common source of title, and of the several mesne conveyances to the parties who had title to the several parcels at the time in question, and was apparently a maintained channel for the drainage of the land owned by plaintiff. The fact that this land was conveyed by a common owner prior to the time of the sale and conveyance of the other lands through which the ditch extended to the river rendered it the dominant estate and these other lands servient to the purposes of the channel. The purchasers of the several parcels from the common owner and from those who made the mesne conveyances were to be deemed to have purchased with a view to the easement and the burdens which this artificial channel to carry off the water produced, and therefore the party owning the dominant estate had the right to have preserved and maintained this means of drainage of her lands. 21 N. Y., 205; 47 id., 73; 13 J. & S., 555. Action to recover damages alleged to have been sustained by plaintiff by the obstruction of the flow of water in its proper channel from her land. Plaintiff had been the owner for some years of about five acres of land in Olean, bounded on the south by Irving street. Defendant Feuscher owned land south of plaintiff, and the wife of defendant Mallory lands further south. In 1853 or 1854 a ditch was made through all these lands in a southerly direction to the Allegany river, which operated to drain the lands. At that time all the lands through which the ditch ran to the river were owned by the same parties who caused the ditch to be made. They afterward conveyed the lands in parcels, plaintiff's lot being first conveyed with the ditch operative for drainage of these lands, which were somewhat swampy, especially that in question. The parties derived their titles and right of possession of the lands occupied by them respectively through several mesne conveyances from the owners by whom the ditch was made. ditch remained effectual to drain the lands of plaintiff until about 1880, when it was obstructed south of plaintiff's premises on the lands of Feuscher and Mrs. Mallory by ploughing and cultivating the lands where it was located so as to partially fill it with earth, and as a result the lands of plaintiff were flooded; that was done under the direction of defendants. Defendants denied the right and priv- | duty to keep the ditch open and in The That this may not have imposed upon the owners and occupants of the servient tenements any legal suitable repair, but the easement carried with it the right and privilege to the party beneficially interested in its maintenance to go upon the premises so burdened for the purpose of making the repairs necessary to the preservation of its usefulness. The owners or occupants of the servient premises had no right to materially impair it in the cultivation of the lands through which the drainage was constructed. Judgment and order affirmed. Opinion by Bradley, J.; Smith, P.J., and Haight, J., concur. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Isaac B. Potter et al., respts., v. The New York Infant Asylum, applt. Decided May, 1887. The president of a corporation has general authority to employ counsel to assist in legal proceedings where the corporation is interested. A corporation which has enjoyed the benefit of a contract cannot escape responsibility by pleading irregularity in the making. Appeal from judgment in favor of plaintiffs, entered on report of a referee. Action to recover for legal services performed by plaintiffs in proceedings instituted in behalf of defendant to restrain the levying of a tax on the property of defendant. The services were proved and the value as found is conceded not to be excessive, but it is claimed that defendant was not liable because plaintiffs were not employed by resolution of the board of managers, nor by any person having authority to bind the corporation; the charter providing that five managers shall constitute a quorum for transaction of ordinary business, but that no contract shall be made involving an expenditure of more than $500 without the presence of a majority of the managers. Plaintiffs performed the services at the request of the president of the corporation, who was an attorney and controlled the litigations of defendant, which were numerous. He obtained the aid of many lawyers and in no case consulted the board in advance, and his action was in most cases ratified by paying for the services. Plaintiffs prepared the complaint and brief for argument at Special Term and opened the argument, and also prepared the printed argument at General Term, which was followed by a reversal of the adverse decision, and the property was exempted from taxation. The annual tax was $900 and the exemption is still enjoyed. Clark Bell, Edgar P. Hill and M. J. Keogh, for applt. C. F. Potter, for respts. Held, That the judgment was right. That the president of a corporation has a general authority to employ counsel to assist in legal proceedings in which the corporation is interested is well established. 9 Paige Ch., 496. So as to a cashier. 10 Wall., 604. In Root v. Olcott, 42 Hun, 536, the court |