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1. THE BONDS ISSUED BY THE County Court of Cape Girardeau County, on behalf of Cape Girardeau Township, under act of March 23d, 1868, to aid in building the C. G. & St. L. R. R., were without authority of law, and are void. Ranney v. Bader, 50 Mo. 600, overruled.
2. THE BONDS BEING VOID, the tax levied to pay interest on them was illegal; but a collector who has collected such illegal tax is not liable in any action brought by a taxpayer to recover back the amount of taxes so collected from him.
3. THE COLLECTOR NEED ONLY ENQUIRE whether the assessor had jurisdiction over the property; i. e., whether it is taxable in any form, and he need not trouble himself about the regularity of the proceedings. If the tax-list shows jurisdiction he is protected.
4. WHERE THE ASSESSMENT IS ILLEGAL, or is based on the illegal act of the county court, the remedy of the tax-payer must be by a proceeding to arrest the execution of the illegal assessment or collection of the tax. This may be done by certiorari or by bill in equity, or by injunction by the attorney-general or other proper law officer.
L. Houck, for plaintiff in error; T. C. Reynolds, for defendant in error.
NORTON, J., delivered the opinion of the court: This suit was instituted in the Circuit Court of Cape Girardeau county, to recover the sum of $67, which, it is alleged, the defendant, as sheriff and collector for said county, had collected from plaintiff by coercion, the same having been levied on his real estate situated in the township of Cape Girardeau, in said county, as a special tax, to be applied to the payment of interest on certain railroad bonds, issued by said county on behalf of said township to the Cape Girardeau and State Line Railroad. It is also alleged in the petition, that all the proceedings of the county court in levying said tax, and issuing said bonds, were without authority of law and void. The defend
ant admits, in his answer, the collection of the sum sued for, and sets up, by way of justification, that the bonds, for the payment of interest on which the tax was levied, were valid and lawful, and that the tax was assessed according to law. The principal recitals of the answer may be found in the case of Ranney v. Bader, 50 Mo. 600. All the allegations of the answer were denied by replication, a trial had, resulting in a judgment for defendant, from which plaintiff has prosecuted his writ of error to this court. The various objections made to the reception of evidence, and the giving and refusing instructions during the progress of the trial, present but two questions for our determination:
1st. Were the bonds, out of which the interest originated, and for the payment of which interest the tax was levied and collected, issued by authority of law?
2d. If issued without lawful authority, can the plaintiff recover for the enforced payment of the taxes assessed and levied to pay interest on them? I. The bonds out of which the present controversy arose were issued by the County Court of Cape Girardeau, on behalf of Cape Girardeau township, in said county, under the act of March 23, 1868. (Acts 1868, p. 92.) The evidence introduced on trial shows that there were 619 registered and qualified voters in said township, and that at the election held for the purpose of testing the willingness of the people of said township to subscribe $150,000 of stock for the purpose of constructing a railway commencing at the city of Cape Girardeau, running in a southwest direction to some desirable point on the state line, only 376 votes were cast in favor of the subscription, which lacked 36 votes of being two-thirds of the qualified voters of said township. The first question presented must, therefore, under the authority of the cases of State ex rel. Woodson v. Brassfeld, and Webb v. Lafayette County Court, decided at this term, be answered in the negative.
II. The bonds being void because they were issued without authority of law, it therefore follows that the tax levied to pay the interest on them was illegal. While this is so, it does not follow that the defendant, who, as collector, enforced its payment, is liable to be sued therefor. In the case of Rubey v. Shain, 54 Mo. 207, it was expressly held that the collector who had collected taxes which had been assessed for the purpose of paying interest on an illegal and void subscription, made to a railroad company by the county court, was not liable, in an action brought against him by a tax-payer to recover back the amount of tax so collected from him. This case is not deemed to be in conflict with those which decide that a tax collector is held to the same degree of responsibility which attaches to sheriffs and constables, nor with the cases of State v. Shacklett, 37 Mo. 280, and Glasgow v. Rowse, 43 Mo. 489, in which the collectors were held liable, on the ground that the property taxed was not subject to taxation, and that the illegality of the tax was apparent on the face of the tax books placed in the hands of the collectors, and
disclosed the fact that no jurisdiction existed to levy the tax. While not in conflict with the principle announced in those cases, it is in harmony with that announced in the case of St. Louis M. L. Ins. Co. v. Charles, 47 Mo. 466, where it was held that the collector need only inquire whether the assessor had jurisdiction over the propertythat is, whether it was taxable in any form, and he need not trouble himself about the regularity of the proceedings. If the tax list shows jurisdiction he is protected. 66 It was the collector's
duty to collect the tax, unless the assessment was void, and it could not be said to be void if the property was subject to taxation." It was also held in the case of N. M. R. R. Co. v. McGuire, 49 Mo. 483, that when the property is liable to be taxed in any form, though irregularly assessed, the collector would not be liable to the tax-payer for the amount collected. In the case of Ruby v. Shain, supra, which we think decisive of the second point we are considering, it was held that when the property was liable to taxation, the assessor's book, superintended and sanctioned by the county court, ordered the collection of the tax, the collector would be exonerated from liability, and that when the assessment is illegal, or when it is based on the illegal act of the county court, the remedy of the tax-payer, must be by a proceeding to arrest the execution of the illegal assessment and collection of the tax.
This may be done by certiorari, under the authority of the cases of State ex rel. v. St. Louis County Court, and State ex rel. v. Dowling, 50 Mo. 134, in which it was held that the action of the county court in assessing taxes was judicial in its 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. 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 illegal acts of county courts in respect to assessing 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 it must be regarded as the settled law of this court that it will grant its aid to restrain, by injunction, the imposition of any tax or burden on the taxpayer contrary to law, on a complaint filed by any tax-payer on his own behalf, as well as on behalf of others similarly interested." It may also be done under authority of the case of State v. Saline Co. Court, 51 Mo. 352, where it was held that the state, through its attorney-general, or other proper law officer, might maintain a proceeding by injunction to restrain the imposition and collection of an illegal tax.
It is said the above cases are not in strict accord with the cases of Dean v. Todd, 22 Mo. 92; Sayre v. Tompkins, 23 Mo. 443; Barron v. Davis, 46 Mo. 394; Leslie v. City of St. Louis, 47 Mo. 478; Stein v. Franklin Co. 48 Mo. 176, which assert the doctrine that courts of equity will not interfere by injunction to restrain the collection of an illegal and void tax. The distinct ground upon which the court based its conclusion was, that in such cases
courts of equity will not interfere, because there was a complete remedy afforded to the injured party by an action at law against the officer.
There is, however, another ground of equitable jurisdiction which reconciles the conclusion reached in the cases of Newmeyer v. Mo. & Miss. R. R. Co., and Rubey v. Shain, supra, with the cases above cited, viz: That equity will maintain jurisdiction to prevent multiplicity of suits; and no stronger case could be put for entertaining jurisdiction under this rule, than is presented when one taxpayer, for himself and all other tax-payers of a township or county similarly interested, brings his bill, asking the chancellor to put forth restraining process to prevent the imposition and collection of an unauthorized tax, and thus settle in one suit what it would take hundreds, and perhaps thousands to do, if such relief were denied, and the parties subject to the payment of such tax were driven, each one, to his action at law for redress.
Following the case of Rubey v. Shain, supra, the judgment is affirmed on the ground that the collector is not liable.
All concur in the conclusion reached, so far as it is based on the non-liability of the collector, except Sherwood, C. J., who dissents. Sherwood, C. J., and Henry, J., concurring in views expressed in regard to act of 1868, and bonds issued under it. Napton, J., dissenting therefrom. Hough, J., adheres to his opinion in the Brassfield case, but declines to declare the bonds invalid, on the ground that their recitals, which are not before the court, may be such as to protect the innocent holders, under the decision of Carpenter v. Town of Lathrop, 51 Mo. 483.
Plaintiff was the owner of a tract of land on which he erected a dwelling-house, and through which tract a stream ran, which was dammed by him and used for an ice and fish pond, and also to supply a cistern. Defendant established a colliery near plaintiff's land, and pumped the water therefrom, so that it passed into the stream and unfitted it for the use to which plaintiff had been putting it. In an action by plaintiff to recover for the injury, the court below directed a nonsuit. Held, error.
WOODWARD, J., delivered the opinion of the
In the year 1868 the plaintiff purchased a tract of land in the city of Scranton, and began the erection of a house upon it, which was finished in the year 1870. Before the purchase, a stream of water,
which ran through the land, was examined by Mr. Sanderson, who traced it to its source. It appears from his testimony that the existence of this stream was a leading inducement to the plaintiff to buy and build. It was called by some of the witnesses Meadow Brook, and was of an average width of perhaps seven feet throughout the distance from the house of the plaintiff to the springs from which it flowed. Mr. Sanderson testified that when he traced it in 1868 the water was perfectly pure. Dams were built across it for the purposes of a fish and ice pond, and to supply a cistern. Water was carried in pipes from the cistern to a ram, and thence to a tank in the attic of the house. After the improvements were completed the defendants established a colliery on lands belonging to them along the stream, and about two miles above the land of the plaintiff. A drift was first made into their mine, and a shaft was afterwards sunk. The water which collected in the drift, as well as that pumped by powerful engines from the shaft, ran into Meadow Brook, and was carried to its outlet in the Lackawanna river. It was alleged on the trial that the effect of the mine water was to corrupt the water of the stream, and to render it worse than worthless for any domestic or household use. There was evidence that the fish in the brook were destroyed; that the willows along the banks died; that the pipes connecting it with the cistern, the ram and the house, were corroded and eaten out; that the water became unfit for domestic use as early as 1873, and that its use for all purposes was abandoned in 1875. After the evidence of the plaintiff had been given, it was held by the court to be inadequate to warrant or support a verdict, and a non-suit was directed.
In the summary disposition that was made of the cause, sight appeared to have been lost of some distinctions which the law has settled, and a mistake seems to have been made in choosing the class of precedents that were followed. The water in the mine of the defendants was in the ground before the colliery existed, but the drift and shaft collected it in such volume, and the mining operations made its ejection necessary in such a direction, as to render what was harmless in its natural state a souree of material discomfort, mischief and disaster. Undoubtedly the defendants were engaged in a perfectly lawful business, in which large expenditures had been made, and with which widespread interests were connected. But, however laudable an industry may be, its managers are still subject to the rule that their property can not be so used as to inflict injury on the property of their neighbors." Every man," Lord Truro observed, in Egerton v. Earl Brownlow, 4 H. L. Cases, 195, "is restricted against using his property to the prejudice of others." The invasion of an established right will in general per se constitute an injury for which damages are recoverable, for in all civil acts the intent of the actor is less regarded than the consequences to the party suffering. Thus, if a man lop a tree, and the boughs ipso invito fall upon another, or he shoot at a butt and hit another unawares, an action lies. So one is liable who has and through which a river runs to turn his neigh
bor's mill, and lops the trees growing on the river side, and the loppings impede the progress of the stream, which hinders the mill from working. Broom's Leg. Max., 366, 367. To render a particular case an exception to the general principles controlling the exercise of dominion over property by its proprietor, it must be ascertained to be exceptional in its surroundings or its facts. From necessity the principles are sometimes relaxed. They do not apply where it is impossible to gather safe facts to become bases for safe rules. With respect to water flowing in a subterraneous course, it has been held that the owner of land through which it flows has no right or interest which will enable him to maintain an action against an owner who, in carrying on mining operations on his own land in the usual manner, drains away the water from the other's land and lays his well dry. Acton v. Blundell, 12 M. & W. 324. Haldeman v. Burckhart, 9 Wright, 514, and Wheatly v. Baugh, 1 Casey, 528, were ruled in the same way. So rights and liabilities in respect of artificial streams, when first flowing on the surface, are in some particulars distinct from those respecting natural streams so flowing. They are distinct at least to the extent that the user of the easement of sending on the water of an artificial stream to the land of a neighbor, is no evidence that the land from which the water is sent has become subject to the servitude of being bound to send it on. Gavin v. Martin, 19 C. B. N. S. 758. Perhaps Smith v. Kenrick, 7 C. B. 715, may be classed as an exceptional case also, in its circumstances, although as a precedent it will probably prove of doubtful value. It was held there that each of two owners of adjoining mines has a natural right to work his own mine in the manner most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjacent mine.
But except where it is qualified by the existence of peculiar conditions, the duty of the owner of property is defined by the maxim sic utere tuo ut alienum non lædas. Can it be said as a conclusion of law that the duty of these defendants is qualified by such conditions? They created an artificial water course from their mine to Meadow Brook. The plaintiffs insisted that the act resulted in grave injury to them. Why ought not the jury to have been left to determine the truth or falsity of their allegation? It was declared in Gavin v. Martin, supra, that if the water in an artificial stream, when brought to the surface, is made to flow on the land of a neighbor, without his consent, it is a wrong for which the party causing it so to flow is liable. If a man brings or uses a thing of a dangerous nature on his own land, he must keep it at his own peril, and is liable for the consequences if it escapes and does injury to another. Jones v. Festinog, L. R. 3 Q. B. 736. The person whose grass or corn is eaten by the escaping cattle of his neighbor, or whose mine is flooded by the waters from his neighbor's reservoir, (Harrison v. Great Northwestern R. R., 3 Hurl. & Colt. 238), or where habitation is made unhealthy by the fumes and noisome vapors of his neighbor's alkali works (St.
Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642), is damnified without any fault of his own; and it seems but reasonable and just that his neighbor, who has brought something on his own property which was not naturally there, harmless to others so long as it was confined to his own 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 own property. Fletcher v. Rylands, L. R. 1 Ex. 280. In an elaborate and carefully considered opinion in Mason v. Hill, 5 B. & A. 1, Denman, C. J., held, that the possessor of land through which a natural stream runs, has the right to the advantage of that stream flowing in its natural course, not inconsistent with a similar right in the proprietors of the land above and below, and that neither can any proprietor above diminish the quantity or injure the quality of the water, nor can any proprietor below throw back the water without his license or grant. It was one of the features of that case that the water which the defendant had the right to use, subject to the duty of returning it, was heated when it was returned to the stream, and the jury had assessed damages for that. The Chief Justice said in entering judgment: "As to the right to recover for the injury sustained by the water being returned in a heated state, there can be no question." In Wood v. Sutcliffe, 16 Jur. 75, 8 E. L. & Eq. 217, an injunction was granted to restrain the defendant, against whom a recovery had been had at law, from pouring dye-wares, dye liquors, madder, indigo or potash, into a channel that connected his dye-works with a stream called the "Bowling Beck," on which, below the works, the cotton mill of the plaintiffs was situated, and in the use of the water of which they claimed prescriptive rights. "I am satisfied from the evidence," the Vice-Chancellor remarked in the course of his opinion," that to some considerable extent the pollution of this stream is inevitable, and that no court of law or court of equity,nor all the courts in the world, except there were a power of removing all that mass of human beings which now congregate about its banks, ever could restore it to the state in which it once was. But still it does not follow, because there be a certain degree of pollution which cannot be very accurately measured, and which is inevitable, that therefore everybody has a right to pollute the stream by pouring in immense quantities of filth and pollution from his own works to make it ten thousand times worse."
Pennington v. Brinsop Hall Coal Co., L, R. 5 Chan. Div. 769, was a case where an injunction was granted to restrain the defendants from pumping water from their colliery into Borsdane Brook, by which the water in use for the cotton mill of the plaintiffs had been corrupted. While their claim included the assertion of a prescriptive right, it was discussed mainly in view of the position of the plaintiffs as sub-riparian owners. by the justice who granted the injunction. In answer to the suggestion that, in lieu of the remedy sought, damages should be awarded, it was said: "The
rights of the plaintiffs as riparian owners are not limited to their present modes of enjoyment. It is impossible to forsee what new modes they or their successors in title may resort to, or the extent of damages which would be compensation for the injury which the continued pollution might cause to such new modes of enjoyment. While a right by prescription was the main element of the title of the plaintiffs to a decree in Wood v. Sutliffe, and a partial element in the title of the plaintiffs in Pennington v. Brinsop Hall Coal Co., it did not enter at all into the consideration of Mason v. Hill. There indeed it was expressly put aside. "We do not wish," the Chief Justice declared, "to rest a judgment for the plaintiff on this narrow ground." Pennington v. Coal Company was decided so lately as last May, and it would seem that in England this branch of the law has been definitely and firmly settled.
And the question is by no means a fresh one in Pennsylvania. In Barclay v. Commonwealth, 1 Casey, 503, the defendant had been convicted of a nuisance in the Quarter Sessions of Bedford, in permitting the washing and waste from his barnyard to escape into the springs dedicated by the Penns to the use and benefit of the inhabitants of the town of Bedford In this case the judgment was reversed for an irregularity in the sentence, but the conviction was approved. Little Schuylkill Nav. Co. v. Richards, 7 P. F. S. 142, was an action to recover damages for injury to the plaintiff's forge-dam in the Little Schuylkill River, caused by the throwing of coal dirt, slate and loose earth into the channel of the stream by the servants and employees of the defendants. The refuse matter was carried down the river by the action of the water and deposited in the dam. Other persons were shown to have cast the refuse of their mines into the water, and the court below had charged in substance that the defendants were liable for the combined results of all the deposits. This instruction raised the main question on the writ of error. It was held here that the liability of the defendants began with their act on their own land, and was wholly separate and independent of concert with others, and that their tort, having been several when committed, did not become joint because its consequences united with the consequences of the acts of others. But it was not suggested that under any theory or doctrine of public policy the defendants had the right to use the river bed as a dumping ground for the rubbish of their mines. The corruption of the water was not alleged it is true, but it is not readily apparent how a principle could be sound that would justify the destruction of the water of a running stream for one purpose and not justify the destruction of its uses by the same or similar agency for all purposes whatever.
In the argument the ground was distinctly taken that immense public and private interests demand that the right which the defendants exercised in ejecting the water from their mine should have recognition and be established. It was said that in more than a thousand collieries in the anthracite regions of the state, the mining of coal
can only be carried on by pumping out the percolating water which accumulates in every tunnel, slope and shaft, and which, when brought to the surface, must find its way by a natural flow to some surface stream. It was urged that the law should be adjusted to the exigencies of the great industrial interests of the commonwealth, and that the production of an indispensable mineral reaching to the annual extent of twenty millions of tons should not be crippled and endangered by adopting a rule which would make colliers answerable in damages for corrupting a stream into which mine water would naturally run. These are considerations that are entitled to be well weighed. In the trial of questions like this before a jury they ought to be kept steadily in view. The proprietors of large and useful interests should not be hampered or hindered for frivolous and trifling causes. For slight inconveniences or occasional annoyances they ought not to be held responsible, and in dealing with such complaints juries should be held with a steady hand. Only when some material and appreciable injury has been sustained should a recovery of damages against them be allowed. But there must be one rule of law maintained for all men, and by that rule all men's rights must be tried and tested. The view so earnestly and ably presented by the counsel here was pressed upon Mr. Justice Mellor in the trial of St. Helen's Co. v. Tipping, 11 H. L. Cases, 642, a precedent in every way of interest and value. After the verdict a motion for a new trial was heard and refused by the Court of Queen's Bench, and on appeal to the Exchequer Chamber and afterwards to the House of Lords the judgment was affirmed. In charging the jury the judge used this language: "The defendants 'if you do not mind you will stop the progress of works of this kind;' I agree that that is so, because no doubt in the county of Lancaster, above all other counties where great works have been created and carried on, works which are the means of developing the national wealth, you must not stand on extreme right and allow a person to say, 'I will bring an action against you for this, that and so on.' Business could not go on if that were so. Everything must be looked at from a reasonable point of view; therefore the law does not regard trifling and small inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected." In another part of the same lucid charge the jury were instructed that, "if a man by any act, either by the erection of a lime-kiln or copper works, or any work of that description, sends over his neighbor's land that which is noxious and hurtful, to an extent which sensibly diminishes the comfort and value of the property, and the comfort of existence on that property, that is an actionable injury." The consequences that would flow from the adoption of the doctrine contended for could be readily foretold. Relaxation of legal liabilities and remission of legal duties to meet the current needs of great business organizations in one direction would be logically followed by the same relaxation and remission on the same
grounds in all other directions. One invasion of individual right would follow another, and it might be only a question of time when, under the operation of a single colliery, a whole country side would be depopulated. Judgment reversed. PAXSON, J., dissented.
NOTES OF RECENT DECISIONS.
WHEN AUCTIONEERS' WARRANTORS OF TITLE.— Davie v. Blakely. Court of Appeals of Texas, 18 Alb. L. J. 114. Opinion by ECTOR, P. J.-An auctioneer, selling personal property at public outcry, without disclosing the name of the owner of the property sold, is liable upon an implied warranty of title.
FOREIGN ADMINISTRATOR-NOT LIABLE TO SUIT WHEN.-Magraw v. Irwin. Supreme Court of Pennsylvania, 9 Pitts. L. J. 5. Opinion by MERCUR, J.1. A foreign administrator, who has not administered in Pennsylvania, can not be sued in Pennsylvania. 2. A, resident of Maryland, died, leaving his entire estate, consisting partly of bonds of Pennsylvania corporations, to his wife, and naming his brother as executor; the latter died prior to the testator. Letters of administration, with the will annexed, were granted to his widow by the Orphans' Court of Cecil County, Maryland; she filed an appraisement and inventory of the estate, the court directed that she take it at the appraisement; she died and defendant was appointed administrator. While on a visit to Pennsylvania, plaintiff sued him. Held, that he could not sustain his action in Pennsylvania.
WHEN APPOINTMENT OF RECEIVER OF INSURANCE COMPANY AUTHORIZED.-Atty.-Gen. v. Atlantic Life Ins. Co.. New York Court of Appeals, 18 Alb. L. J. 112. Opinion by FOLGER, J. 1. The question to be determined, where the appointment of a receiver for an insurance company is asked is, are the assets of the company sufficient to justify the belief that the company may continue in the business of insurance with safety to the public? If they are not sufficient a receiver should be appointed. 2. On an application by the attorney-general for the appointment of a receiver of an insurance company, it appeared that the assets of the company were short of a sum equal to the amount of the outstanding policies by about one-tenth that amount, that the capital had been entirely sunk, that a portion of the assets were of a kind not readily available, and that its management was careless and not such as to beget confidence. Held, that an order appointing a receiver would not be set aside by this
WATER RIGHT APPURTENANT TO LAND-TRESPASS.-Cave v. Crafts.-Supreme Court of California, 1 Cal. L. R. 359. Opinion by MCKINSTRY, J.-1. The purchase of land carries with it all the apparent benefits and easements, as previously enjoyed, without any express reservation or grant, and the word "appurtenances" is not necessary to such conveyance. The grant of the principal carries the incident. 2. An "easement" to real estate granted is a privilege off and beyond the local boundary of the land; in this case of conducting water through the lands retained by the common grantors of the plaintiffs and defendants; and no subsequent act of their grantor could divest them of their right. But to acquire a right to water by adverse use for more than five years, the use must be open, as of right, also peacable. If disputed or interrupted, however slightly by the owners, the acquisition of such right is prevented. The existence of an easement will support an action or trespass.