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verts water from its natural flow upon said land, flowed in that direction. That said tunnel
the circuit court is right, and should be tions of water from above and the east at affirmed.
any time. That above and to the east of
it, and easterly from said embankment, LONG, J., did not sit. MORSE and GRANT, there is a large tract of several hundred JJ., concurred.
acres of land, the drainage from which is (80 Mich. 100)
naturally stopped by said naturalembankCHAPEL V. SMITH et al.
ment from flowing down upon said plain.
tiff's said land, the water accumulating (Supreme Court of Michigan. April 11, 1890.)
upon said tract of land situated to the east SURFACE WATER-DRAINS.
of said embankment naturally flowing off 1. One who acts merely as a contractor or la- from said land in a north-easterly direcborer in the construction of a tunnel, and who has tion, flowing entirely away from and never no control over its maintenance, is not liable for touching said plain tiff's said land. That damages to the crops of a distant land-owner, oc
in the spring and summer of 1884, unlaw. casioned by the subsequent flow of water from the tunnel.
fully and wrongfully, and to the great 2. A drain commissioner has no right to main
damage of said plaintiff, defendants, by tain a drain whereby water is thrown upon a per
themselves, their agents, and employes, son's land, without providing a proper outlet there- dug and opened a large tunnel, filling the for.
same with a crock tile about 23 inches in 3. Though the capacity of a drain diverting diameter, directly under and through said water from its natural flowage is no greater than the drain for which it was substituted, still if for
embankment, being a distance of about 15 any reason a greater amount of water flows through rods, which was capable of emptying, and it, upon lands below, the one maintaining such
which did empty, great volumes of water, drain is responsible for the damage caused by the the accumulations from said tract of land increased flowage.
to the east of said embankment, out into 4. Where a drain diverting water from its nat- a fertile valley, leading directly onto said aral course has fallen into disuse for some time, plaintiff's land, said plaintiff's land forinone who causes it to be reopened and maintained ing a part of said valley. That the result is liable for the consequences, as if there had been no drain before.
of digging said tunnel was to cast upon 5. The owner of wild and unimproved land has
said plaintiff's land a large volume of waan immediate right of action against one who di
ter, which otherwise would not have , ,
or 6. Where it is claimed that plaintiff acquiesced and that no means whatever were or ever in the construction of a tunnel which diverted water from its natural flow, and cast it upon plain
had been employed to convey the water tiff's land, he is entitled to the admission in evi
to any place beyond a few rods beyond the dence of everything done by him, or others in his
mouth of said tunnel. That so great was behalf, by way of protest or remonstrance against the quantity of water which flowed such diversion.
through said tunnel that at certain times 7. In an action for damages from flowage, it is of the yearit continued flowing constantly competent for plaintiff to show that it was prac- for several days at a time. That said ticable to drain the water in the direction of its
wrong and injury had so continued from natural outlet, and away from plaintiff's land.
the opening of said tunnel by defendants Appeal from circuit court, Genesee coun- down to the time of the commencement of ty; WILLIAM NEWTON, Judge.
this suit. That the consequence of the David P. Halsey and Frank B. Leland, digging and constructing said tunnel by for appellant. Lee & Aitkin and A. W. said defendants was to do away with said Davis, for appellees.
natural barrier to the water formed by
said embankment, and to cause a large MORSE, J. The plaintiff sued defend- quantity of water to flow down upon ants in the Genesee circuit court for dam- | plaintiff's said land which otherwise would ages to his premises by the opening of a not hare done so, bringing with it pieces tunnel through a natural embankment by of wood and brush and other refuse. reason of which a large amount of water, That the water and refuse flowing and decontrary to its natural flow, was let down posited upon plaintiff's said land had deupon and across his lands. The plaintiffstroyed the crops on from 12 to 15 acres alleged in his declaration that he was the thereof for several years, and that the land owner of 80 acres of land, situated in Gen- had been permanently injured thereby, and esee county, occupied and tilled by him for the crops destroyed, to the great damage farming purposes. That in 1884 said land
. That in 1884 said land of said plaintiff. Another count charges was properly drained by good and suffi- that the depositing of said drift-wood has cient drains, the main drain being laid out created an intolerable public nuisance, and and constructed by the towusbip drain has caused, by said coming down of water commissioner of the width of 10 feet, and and drift-wood, whenever the same comes of the depth of 3% feet, and thatit was am- down upon his premises, an intolerable ply sufficient to carry away all the water and unhealthy stench, which fills the air which would fall upon said land, or which with malaria and impurities, and endanwould flow thereon, from all other lands gers the health of plaintiff and his family, naturally draining upon the same. That and that of his neighbors in the vicinity, about one mile east of plaintiff's said land and which stench is an intolerable and there is a natural embankment or rise of public nuisance; and also that said land land running north and south, which has already been permanently injured forms a barrier against all the water thereby, and plaintiff's ditches filled up above and to the east of it; said embank- and permanently obstructed by said refuse ment consisting of a hill, the lowest point and sand, and the water standing on said of the crest of which is about 15 feet above land has caused it a permanent injury. the highest point reached by accumula- The defendants pleaded the general is
sue, and gave notice under such plea that the land in his immediate ricinity, was a they could prove that the tunnel com- willow swamp, with some tamaracks plained of had been in continuous exist-growing therein. East of the point where ence for more than 15 years previous to the this tunnel was constructed was a marsh. time that the defendants in the declara- This marsh was a mile or so east of the tion are alleged to have constructed it, | plaintiff's land, and upon land taken up and that it was originally built and main- and now owned by Edward Parsons. tained by the Flint & Iloily Railroad Com-Upon the west side of this marsh was a pany and the citireus of Grand Blanc in high ridge of hard land, called a "hogthat vicinity, and the public had a right back." The natural flow of the water thereto, and a public drain called the upon this marsh was to the north and "Seavor Ditch" or "Cook Drain No. 2" | east, and away from plaintiff's land. But was constructed years ago to furnish an upon the west side of the hog-back, and outlet for the water passing through it. lower than the marsh on the east side, That at the time the work complained of and upon the land of Mr. Parsons, was was done defendant Smith was drain com- low, wet, and swampy land, part marsh ruinsioner of Grand Blanc. That Smith and black ash swale, forming a depression was acting as much commissioner, and by or valley, running towards and upon plainvirtue of proceedings instituted under the tiff's land, the surplus waters of which drain law, by a petition signed by 25 free run through this depression down into a holders of said township, and that the creek or well-defined water-course below work was performed as a public improve- plaintiff's land. Plaintiff purchased his ment legally instituted upon said petition, | land in 1877, and has since been living upon and on proceedings, based thereon, by it. The plaintiff himself testifies, and it is sald Smith as drain commissioner, who also established by other testimony, that had established said tunnel and made it a in 1878 he, with others, called out the drain part of the drain prayed for in said peti- commissioners, and had a “big ditch, " 10 tion, and which was established by said feet wide and 3%, feet deep, put through commissioner after the necessity therefor this valley. This ditch ran back towards had been determined, not only by him, but the ridge, within from 20 to 100 rods of the by special commissioners appointed by the tunnel, and it crossed the plaintiff's land. probate court of Genesee county. That He swears that there were evidences of an the vald tunnel is a part of the " Parsons old ditch there at that time,-"a narrow Drain," so known and established, and is ditch, nearly filled up." One of his witnow a public township drain; and that nesses, Thomas Pollock, testifies that this Smith, in cleaning out said tunnel and put- old ditch was laid in 1863, and crossed ting erucks therein, Instead of the plank plaintiff's land, and also went up to withthen in maid drain, only did his duty, and in 20 rods of the tunnel, and that it was did not Increase the flow of water therein. | called the Seavor ditch, and was a small That other public drains carry large vol- ditch. The work in 1878 seems to have umes of water onto plaintiff's land, and, if been a clearing out,
out, enlarging, and he has been damaged, such damage has straightening of this old ditch, and since been occasioned by his own negligence in then it has been kept open and mainnot constructing or procuring a proper tained as a public drain. The plaintiff's and sufficient outlet for said water. That own witnesses also establish the fact that the water, after leaving said tunnel, passes a tunnel was opened through this ridge or into a public drain, and in said drain | hog-back as early as 1866. This tunnel through a level fertile valley, for more than was constructed by the Flint & Holly Raila mile, before it reaches plaintiff's land, road Company, who put a box or plank and flows over plaintiff's premises through drain through in the same place where & public water-course, a township or the defendants committed the alleged county drain,-made to receive it more wrong against plaintiff. Pollock also testhan 15 years before this sult was brought, tified, and there seems to be no doubt of it and that the defendants and the public from other testimony, that, in 1862, Pargrnerally have acquired a right to have sons, who owned the land on both sides the water flow therein; and that the de- of the ridge, put a small blind ditch fendant Parker had nothing to do with through the hog-back, which let some wathe work, except to lay the crocks and ter through from the eastern upon the clean out the tunnel under the contract. western marsh, and into the valley below. Upon this issue a large amount of testi- | This ditch, however, was not where the mony, reaching back more than 40 years, tunnel now is, but some rods from it. The was taken, at the clure of which the cir- drain put in by the railroad company rotcult judge directed a verdict for the defend- ted, and then they then put in a triangular ants, upon the ground that there was a box-drain. This last drain began to ca ve in public drain where the waters coming in 1881, and in 1883 or 1884, about the time through from this tunnel. were discharged, of the action of defendants, had fallen in which had existed for over 20 years, and so that no water ran through the boxthat the tunnel was part of said drain; drain. The capacity of this tunnel from and that Smitb acting as drain commis- 1866 to 1881, from testimony given by plainkioner, and Parker taking the contract tiff's witnesses, seems to have been as great under him, were justified in what they did. for carrying off water as it has been since
It is claimed by the plaintiff that he had the crocks were put in. This testimony a right to go to the jury on several prop-shows, also, that the flow of water upon oritions of fact in the case. The testimony plaintiff's land has increased latterly year shows that, in a state of nature, the land by year. This is partially accounted for now occupied by plaintiff, or the portion by the fact that the area of ground drained calmed to be injured, as well as much of by the tunnel has been increased by parties
east of the ridge draining their lands into about how much in each year, in your opinthe eastern marsh. It also appears that ion, you have been damaged by this overin the years most complained of by plain flow. A. I can hardly state; some years tiff the damage was caused by heavy and it would not amouut to a great deal. unusual freshets. It also appears that at There has not been so very much until last the particular time the crocks were put in year,” (1887.) He further states that his by Smith and Parker the water had damage was the greatest in 1887, and next washed a hole through the ridge where to it was the year 1880. The testimony of this box tunnel had been, and that such all the witnesses shows that there were hole was capable of discharging more wa- unprecedented floods or freshets in both of ter in a given time than the tunnel as now these years. One witness swears that constructed. The reason of Smith's ac- Chapel had from 3 to 5 acres of corn ruined tion as to this drain seems to have been in 1884, and that some 15 or 18 acres of his this: In 1856 a plank road was built land was overflowed, but this was before across this eastern marsh. This highway the crocks were put in, and in the spring. was never overflowed until 1866, or about His son also testified to damage done to the time the Flint & Holly Railroad was hay and corn in the spring of 1884, but he built across the same marsh to the east of gives no damage happening that year after the highway. The railroad company put Parker's work, and his father, the plaina culvert under their embankment, and tiff, when brought upon the stand aftertheir ditches let more water down towards wards, was asked on cross-examination, the highway, the lowest part of the marsh and testified, as follows: "Question. How being near the place where the tunnel is. much were you damaged in 1884, the spring The tunnel was originally constructed by when that big freshet was? Answer. Well, the railroad company to relieve the high- sir, if I remember right, the tunnel was way. There was some talk at the time stopped after it caved in until the freshet about injury to the lower proprietors, and was over. Q. Your boy said there was 12 the railroad company wanted the town- or 15 acres overflowed in the spring. A. I ship board to indemnify them against lia- hardly. think he said that. Q. Will you bility for such damage, lut what was swear he didn't? A. No; I wouldn'tswear done in this regard does not clearly ap- he didn't. R. Will you swear there was pear, nor is it material. In 1883 and 1884 not 15 acres overflowed on that place in the highway was overflowed, and Smith the spring of 1884. A. I don't remember was called upon as drain commissioner to that there has been a spring when the open a public drain through the tunnel. water comes down from above but what No documentary evidence was given on the it overflows,-did this year. Q. Always trial as to the proceedings, but, without been 15 acres overflowed ? A. Somewhere; objection, both sides went into the mat- not quite as much as last year. Q. How ter, and it appears that the probate court, much was overflowed in 1883? A. I have the parties interested appearing by coun- not got any damage for 1883. I didn't sel, Judge LONG acting for the people be- look to find out what the damage was in low the tunnel, appointed three special 1883. Q. What was it in 1882? A. I had commissioners, who determined the ne- oats over on the south side, and there was cessity of this drain, and that the tunnel that patch I spoke of that was killed out was cleaned out, and a 20-inch crock putin. | again. That same patch has been killed
I cannot see how this action can be main- out pretty nearly every year since 1880. tained against the defendant Parker. He we have been flooded from two to three was employed by, and acted entirely un- times a year. We had a flood this spring. der the direction of, the defendant Smith. Q. Did you ever since you have lived there The act of cleaning out the tunnel or the see such a flood as there was last spring? putting in of the crocks was not a direct A. I never knew it to come down so quick, trespass as against plaintiff, and no con- hardly. It came down very much quicker sequential wrong or injury was occasioned than it used to. Q. Did you ever see it rain him thereby until nearly a year afterwards, as hard ? A. For a little while it did rain and that so slight that he made no par- pretty hard, but not a great while. Q. Did ticular note of it. The tunnel was on the you ever see it rain as hard before? A. I lands of Parsons, and the injury to plain- | don't know.” tiff of which he complains was not the im- At this time he further stated that he mediate result of Parker's work, but has suffered some damage in 1885 and 1886, but rather been caused by the subsequent that he had only stated two different dammaintenance of this tunnel. It appears ages in 1880 and 1887, when everything was from plaintiff's own testimony that he was killed out. There was no testimony whatfirst injured by this tunnel in 1880, four ever of any damage in the year 1884, after years before the putting in of the crocks. the work complained of by Smith and There was a heavy freshet that year. The Parker was done. This tunnel has not tunnel was dug out by Parker in June or been maintained by Parker since 1884, and July, 1884. In regard to the damage that he has no authority over it, or any dominyear, plaintiff testifies: “Question. What ion over the soil in which it is planted. damage did you sustain that year after The labor he did in cleaning it out and putthe digging out of the tunnel? Answer. ing the crocks in was that of a contractor Some, but not as much as I have some or hired man. He has not done anything other years. The tunnel was not dug out, since towards keeping it there, and has if I remember right, when the spring rains had no right to meddle with it in any way. came; but there was something on the flat By what rule of law is he to be held rethat damaged some, but not so much, that sponsible for the damage done by it in year. Q. The different years since 1884, - 1887, the year for which plaintiff seeks to just take it along by the year, and state recover, or even for the damage done in
1885 or 1886, 18 any? If he can be held for | Bush, 64 Mich. 37, 31 N. W. Rep. 90. But, these years, he can be held indefinitely, like any other right gained by adverso when he has no power or right to close this user, it must be limited by the extent of tunnel. Somebody may be maintaining it, the user, and the right to discharge a drain but Parker is not responsible for it. It upon the lands of another cannot be acParker had placed the tunnel upon his quired by 20 years' user, unless the drain own land, and had power and dominion be one and the same, and the use thereof over it, so that he could maintain it or uninterrupted during the whole period. abate it as he chose, then I could see some Cotton v. Manufacturing Co., 13 Metc. 429. reason and some theory in the law by | Therefore the drain or blind ditch put in which he could be held responsible for the by Parsons does not count at all, and is damages occasioned by it, but I confess, of no importance in this case. The tunnel as it is. I can see none. In my opinion, no builded by the railroad company in 1866 was cause of action was shown against Parker. | put in without right, and there is testiNo evidence was given of any permanent mony tending to show that in 1883 and Jamage to the freehold, which the discon- 1881, if not before, the same had gotten out tinuance of the flowing would not relleve, of repair and fallen into disuse. If this as in the case of Cubit v. O'Dett, 51 Mich. should, upon another trial of this case, be 348, 16 N. W. Rep. 679. Here the only dam- found to be a fact, the question of adverse ages claimed were for injury to crops user would be out of the case, and the oncaused by the overflow during certainly matter to be determined would be the years, more especially for 1887, three years lawfulness of Smith's action in the premafter the crocks were put in this tunnel. ises, and, if unlawful, the damages resulting It was, however,said in that case, at page therefrom. It must be conceded that by 360: "The existing ditch might be ob- this tunnel the water was diverted from structed without going upon the plaintiff's its natural flow and thrown upon plainland for the purpose, but as it is not upon tiff's land without right. The circuit judge the land of the defendauts, and they are do- thought, and so held, that this tunnel, Ing nothing, so far as we know, to keep it having discharged the waters of this eastopen, there may be question whether they ern marsh into the Sea vor drain, which are liable from day to day, as a man may had existed for more than 20 years, the be who maintains a nuisance on his own plaintiff could not now dispute the right promises."
which had grown up by adverse user. In In Smith's case he was still drain com- | this he was in error. The question of admissioner at the time this suit was brought, verse user should have been submitted tu and had been such officer ever since the the jury. If there was no drain there when crocks were putin. There is no doubt, from Smith put the crocks in,-if the railroad the whole evidence, that he was acting as company had abandoned it, or it had falldrain commissioner when he ordered the en into disuse for any length of time,-the work done. If his action was not legal continuity of the use had been broken, and and was wrongful as against plaintiff, he Smith must be considered as responsible, must be held responsible for what damage the same as if no tunnel had ever existed has been done him. He has had charge of through this ridge. If the tunnel had been this tunnel, as such drain commissioner, continuously maintained by the railroad and must be considered as the person company since 1866, then it was for the maintaining It. The circuit judge should jury to determine whether, since the inhave submitted to the jury the question termeddling of Smith, the flow of water whether more water flowed upon plain- had been increased upon plaintiff's land. tiff's land after the work of Smith than be- Plaintiff's counsel claim that no prescripfore. It is true I think, as heretofore stat. | tive right to maintain this tunnel is shown, ed, that it was practically undisputed from because Chapel could not complain of it the whole testimony that the capacity of until some special damage had been done the crocks were not greater than that of him; that the land being wild and uuocthe box-drains for carrying water through cupied, and a willow swamp, until 1877 or this tunnel. In other words, as much wa- 1878, and no special damage accruing to ter could hare run through the box- | him until 1880, the adverse use of this tundrains as through the crocks;
and it is also nel did not commence until then; that the true, I think, that the increase of water injury not being direct, but consequential, flowing through the tunnel, and upon his right of action must be founded upon plaintiff, is mainly, if not entirely, due to special damage, and the bar against such the fact that cat-holes and other wet places right could not commence to run until above the tunnel hare been drained into some special damage was occasioned by this rastern marsh. But while Smith may the tunnel. We think the plaintiff or his not hare increased the capacity of aud did grantors had a right of action when the not enlarge this tunnel, when we come to tunnel was first put through this ridge by the prescriptire right claimed by defend the railroad company, if by such tunnel ants to flow plaintiff's land by the main any water was diverted from its natural tenance of this tunnel we must remember flow, and thereby thrown upon his premthnt the measure of such right is not the ises, no matter what was then the condidimension of the tunnel, but the quantity tion of his lands, though, entitled only to of water taken down upon his premises by | nominal damages, the right of action It. Turner v. Hart, 38. W. Rep. 890, 893, would exist; and no one would have the 804. That a prescriptive right to flow this right, without redress, to flood the wild water upon plaintiit's land could be ac- lands of another, or to add to the water quired by 20 years of ad rerne user seems to upon them, because no present special dambe settled in this state. Conklin v. Boyd, age could be shown. 46 Mich. 56, 9 N. W. Rep. 134; Gregory r. But plaintiff's counsel are correct in their
further claim that the “right obtained by was done by it. It was, I think, com peprescription is commensurate only with tent to show that, when Smith put in this the right enjoyed, and that the extent of tunnel, the surveyor considered it practhe enjoyment measures the right, and the ticable, and that it was practicable to privilege cannot be enlarged to the preju- take the water off this marsh and highdice of another. Every increase in the vol- way in the direction of its natural outlet ume of water turned upon the lower pro- and away from plaintiff's land, and that prietors creates a new cause of action." the railroad officials were willing that the It follows, therefore, that, in any event, if proposed drain should go under or through by the maintenance of this tunnel by the embankment of their road. The judgSmith, as drain commissioner, more water ment of the court below will be affirmed has been thrown upon plaintiff's land as to defendant Parker, with costs of both than has flowed through it for 20 years be- courts in his favor, and reversed as to the fore, Smith is liable for the damages oc- defendant Smith, with costs of this court, casioned by such increased flowage, if the and a new trial granted as against him. tunnel was not legally laid out as a town. ship drain; and he may also be liable if it LONG, J., did not sit. The other justices was laid in conformity to the statute, if
concurred. thereby the plaintiff was damaged by neg
(80 Mich. 124) lect to provide him with a proper outlet
PETERS et al. v. CARTIER et al. of the waters thrown upon his premises. If he has wrongfully maintained it, he is
(Supreme Court of Michigan. April 11, 1890.) liable. If the tunnel was not legally laid VENDOR AND VENDEE - BONA FIDE PURCHASERas a public drain, then he is certainly lia
QUITCLAIM DEED. ble for the damage done, if any, by reason
1. H. sold and conveyed to complainant certain of its construction and maintenance. If it lands, on which the latter executed mortgages. is a legal drain, and properly Jaid, then
By mistake in registration, the record of the deed
did not show all the land embraced therein, but the question would arise whether such
the record of the mortgages did. D., seeing the drain could be established and maintained mistake, secured from 8. a quitclaim deed of the to the detriment of plaintiff without his land omitted in the record and sold it to defendconsent. The plaintiff himself swears that ant, but refused to warrant the title, and the quitwhen Smith was putting the crocks in, or claim deed showed on its face only a nominal conabout to do so, he protested against it.
sideration. Defendant, who lived near by, had unSmith said to him: "Smith says to me,
derstood that the land was included in the sale to
complainant, and knew of the mortgages executed after we had talked awhile, he says:
by him, and recorded, which, on investigation, Now, if you will just keep quiet and hold
would have shown that his grantor had no title. on, you fellows, I will get a couple of hun- Held, that defendant was not a bona fide purdred dollars, and help you dig out the out- chaser. let from below.' The consequence was I
2. Purchasers who take by quitclaim deed are never appeared, and supposed he would not bona fide purchasers, and take only the inter
est which their grantors had. do it. I supposed he would do that, and that would have satisfied me if he had dug
Appeal from circuit court, Mason counthe outlet. I think that was during the ty, in chancery; J. B. JUDKINS, Judge. early part of 1884.' If Smith, as drain
J. B. McMahon, for appellant. Dovel, commissioner, had given plaintiff a proper Smith & Smurthwaite, for appellees. outlet, there would probably have been no trouble. Certain it is that the drain com- GRANT, J. On May 26, 1883, one William missioner could not, under the law, in lay- G. Hinman, being the owner in fee of the ing a public drain, empty water that did land in dispute, and other lands, sold and not belong to Chapel upon him without conveyed_them by waranty deed to comproviding a proper outlet to take it off his plainant Richard G. Peters. The considerpremises. If he did so, he would be re- ation was $20,000. The whole number of sponsible for the damages. Cubit v. O'Dett, acres conveyed was 1,160. They were sit51 Mich. 351, 16 N. W. Rep. 679; Ashley V. uated in sections 26, 27, 28, 33, 34, 35, and Port Huron, 35 Mich. 296. The case should 36, township 20 N., range 15 W., and sectherefore have gone to the jury upon the tion 3, township 19' N., range 15 W., Mason question of Chapel's damage, and whether county. They comprised all the lands he or not plaintiff had consented to this diver- owned in that vicinity, and were known sion of the water from its natural flow. among lumbermen as the “Pierce & HinIf any claim of acquiescence is made by de- man Lands.” June 1, 1883, the deed was fendants upon another trial, everything recorded in the office of the register of deeds done by plaintiff or others in his behalf, by for Mason county. By the neglect or overway of protest or remonstrance against sight of the register, the N. 1 of the N. E. 14 such diversion, would be admissible. and the S. W.% of the S. E. 14 of section 34 Proper testimony of this kind was erro- were omitted from the record. May 30, 1883, neously ruled out in the court below. The Peters executed a mortgage upon all the court during the trial made this remark: lands described in the Hinman deed, and “It is a strange doctrine that the court other lands also, for $50,000. This mortshould be kept a week at a time trying an gage was recorded June 1, 1883, and the action of trespass on the case for damages record contained a description of the land when the cause of complaint took place here in controversy. This mortgage contwenty odd years ago; it is a very singular tained some defects, not material to the is. doctrine.” This remark would have been sue in this case; and December 24, 1883, highly improper if the questions of fact had Peters and his wife executed another mortbeen submitted to the jury. As the court gage to correct them. This mortgage directed a verdict, however, in keeping covered the same lands as the first, and with this remark, no separate damage was recorded January 4, 1884. After the