« ПретходнаНастави »
front of the back wheel, help negligence. – Laying v. Mt. Sh ista Mineral Spring Co., Cal., 67 Pac. Rep. 48.
119. OFFICERS- Increase During Term of omice.- AC March 11, 1901, fixing the salaries of certain state of ficere, held not an increase of the compensation fixed by law, within Const. art. 7, § 20, so far as it applied to the unexpired terms of officers at the time the law was passed.-State v. Tingey, Utah, 67 Pac. Rep. 33.
150. PARTNERSHIP-Claims in Competition with Firm Creditors.-A partner cappot claim in competition with firm creditors, for advances, whether of goods or money, to his partnership.-Wallerstien v. Ervin, U. S.C. C. of App., Third C rcuit, 112 Fed. Rep. 124.
151. PARTNERSHIP-Sale of Good Will.-Sale of part. pership property or termination of partnership held not a sale of the good will, beyond any which per. tained to the ownership of the goods.- Webster v. Webster, Mass., 62 N. E. R3p. 383.
152. PATENTS-Contributory Iofringement.-Contrib. utory infriogement cannot be predicated of the rebuilding or replacing of parts of a patented machine by a purchaser for bis own use. - Goodyear Shoe Ma. chinery Co. v. Jackson, U.S. C. C. of App., First Cir. cuit, 112 Fed. Rep. 146.
153. PERSONAL INJORIES-Evidence of Specific In. juries.-In an action for personal injuries, evidence of specific injuries suffered held admissible under the general allegations of the declaration.- Chicago & R. Co. v. McDonnell, Ill., 62 N. E. Rep. 309.
154. PHYSICIANS AND SURGEONS-Malpractice.- In an action for malpractice, a request to charge which ex. empts defendani from liability for negligence to any diseased patient should be depitd.-Mullin V. Flanders, Vt., 50 Atl. Rep. 813.
155. PHYSICIANS AND SURGEONG-Right to Practice Osteopathy.--The practice of osteopatby held compre. bended within practice of medicine, defined by Rev. St. § 44036, as amended by Act April 11, 1900.-State v. Gravett, oblo, 62 N. E. Rep. 325.
156. PHYSICIANS AND SURGEONS - What are “Repu table" Dental Colleges. - Toe word "reputable,” as used in an act authorizing graduates of reputable dental colleges to practice dentistry without exami. nation, means “worthy of repute," "held in esteem," "honorable," "praiseworthy."-Stare v. Chitterden, Wis., 88 N. W, Rep. 587
157. PLEADING-Ohjection to sufficiency of Facts.Where a pleading is pot de murred to, objection to the suficiency of the facts, wbich might have been so raised, may be made to th3 evidence.-Ayres y. Blevios, Ind., 62 N. E. Rep. 305.
158. PRINCIPAL AND AGENT Undisclosed Agent.Person selling bank stock held to be an undisclosed agont, baviog ostensible ownersaip of the stock, if not jointly interested, and authorized to sell the same, and a bona fide purchaser from him ac ordingly ac. quired a good ti le. – Garvin v. Pettee, 8. Duk., 88 N. W. Rep. 573.
159. PRINCIPAL AND SURETY – Liability of Surety on Insolvency of Maker of Note. – Where a dividend has been paid on past due note out of estate of insolvent principal maker, the balance may be collected from the sorelles though there is a probability of another dividend.-National Lead Co. v. Montpelier Hardware CO., Vt., 50 Atl. Rep. 809.
160. PROCE88-Against Executrices. - In an action against delendants as individurla, where leave is granted to amend by specifying that the action is brougbt against certain defendants in their own right and as executrices, plaintiff must bring the execu. trices into court. - City of Pitislurg v. Eyth, Pa., 50 All. Rep. 769.
161. PROHIBITION When Writ will be Granted. Application for writ of prohibition will be granted where there is somethirg yet to be done in excess of the jurisdiction conferred on the inferior court.State v. Lee, La., 31 South. Rep. 11.
162. RAILROADS-Failure to Set Brake. Railroad company, having voluntarily assumed the duty to set a brake on the cars placed under elevator, held liable for injuries to licensee for failure to perform such duty.- O'Leary v. Erie R. Co., N. Y., 62 N. E. Rep. 316.
163. RELIGIOUS SOCIETIES--Right of Dismissed Pastor to Appeal to Civil Courts.-A minister, dismissed from a pastorate by an ecclesiastical court, held not eg. topped to have his dismissal declared unlawful by the civil courts. - Wallace v. Trustees of General As. sembly of United Presbyterian Church, Pa., 50 Atl. Rep. 762.
161. REMAINDERS-Riglits of Children by Prior Wife. -Under Rev. St. 1852, pp. 250,251, children by a prior wile held pot estopped by a proceeding to sell lor creditors the one-third interest in his lund given to the subsequent wile, subject to her life esiale cherein, from claiming the land at her death.-Holliday v. Mil. ler, Ind., 62 N. E. Rép. 291.
165. SILES-Recovery of Entire Price on Conditional Sale.-Where the vendee in a conditional gale has re. ceived the goods and broken the contract, the vendor may recover the entire price. Smith V. Aldrich, Mass., 62 N. E. Rep. 381.
166. SALES-When Promise as to Working Capacity of Machinery is Not Fraud.-Where, on tbe sale of maehinery, defendant promised to make it work up to a certain capacity, the failure to keep such promise does not constitute fraud, though defendant never in. tended to keep the promise. – Ayres y. Blevins, Ind., 62 N. E. Rep. 305.
167. SPECIFIC PERFRMANCE – Decree Good at Time of Decree but not whep Bill was F.led.-Specific per. formance of an agreement to deliver certain notes to a judgment creditor on the satisfaction of the judg. ment will not be denied, where he is entitled therelo at the time of the decree, though not when the bill was bled.-Fred v. Fred, N. J., 50 Atl. Rep. 776.
168. SPECIFIC PERFORMANCE-Vesting of Title on De. cree.-A decree in a suit for speciflo performance held not to vest the absolute title immediately in the com. plainant, but at the death of a life tepant. - Simmons v. Conklin, Mich., 88 N. W. Rep. 625.
169. STATUTES- Construction in Other States. – Con. struction of statute of a sister state by its highest court will be followed in the courts of another state.Kulp v. Fleming, Ohio, 62 N. E. Rep. 334.
170, STREET RAILROADS - Cyclist Must Look and Listen.-A cyclist is bound to look and listen just be. fore crossing street railway tracks. – McCracken v. Consolidated Traction Co., Pa., 50 Atl. Rep. 830.
171. T.XATION – Effectuating Void Tax Deed.- A tax deed, void for want of notice, cannot be made effect. ive by the issuance of an amended deed, without notice, more than three years after the execution of the original. Peters & Wilhelmy Co. v. Maloney, s. Dak,, 88 N. W.Rep. 575.
172. TAXATION-Notice to Raise Aggersment.-Notice of county board of equalization of intent to raise as. sessment should fix a day certain for appearance of property owner. – Everett Water Co. v. Fleming, Wasb., 67 Pac. Rep. 82.
173. TAXATION – Powers of Territorial Boards of Equalization.-Under Comp. Luws, $$ 2634 2636, the territorial board of qualization has no authority to raise the ag regate valuation of the property of the terri. tory above the aggregate valuation as returned by the county assessors.- Poe v. Howell, N. M., 67 l’ac. Rep. 62.
174. TAXATION Rebate of Toxes Because of Fire. Where property is destroyed by fire after the taxe's are spread on the assessment roll, the owner is not en. titled to a rebate of the taxes.-Case v. City of Detroit, Mich., 88 N. W. Rep. 626.
175. TITLE TO REAL ESTATE-Litigated in Suit for Di. vorce.-Title to real estate cannot be litigated in suit for divorce and to compel a conveyance from de. fendant of land alleged to have been purchased
with complainant's money.-Wetmore v. Wetmore, Oreg., 67 Pac. Rep. 98.
176. TRESPA88-Right of Way as D. fense.-An agree. ment between landowners, granting plaintiff's prede. cessors in title a right of way over the land in dispute, held admissible in an action for trespass thereon.B 18sett v. Pennsylvania Co., Pa., 50 Atl. Rep. 772.
177. TRIAL – Admission of Copy of Document Before Proof of L393.-The admission of a copy of a bond without proof of the loss of the original held not er: roneous, in an action on the bond, where counsel stated that proof of 1999 would be subsequently pro. diced. - Italian-Swiss Agricultural Colony v. Pease, Ill., 62 N. E. Rep. 317.
178. TRIAL-Excluding Question Without Statement as to Relevancy.- Where a question is objected to and excluded, and no statement is made as to what the witness would testify, error in excluding the question does not appear.-Mullin v. Flanders, Vt., 50 All. Rep. 813.
179. TRIAL-Refugal to Permit Qurstion to be Re. peated.- Where a question has been answered, it is not an abuse of discretion to refuse to permit it to be repeated.-Mullin v. Flanders, Vt., 50 Atl. Rep. 813.
180. TROVER AND CONVERSION-Letter as Evidence ol Demand.- A letter from the owner of a stolen property to the person in possession thereof held admissible to show notice and demand, in an action for conversion against the person in possession.- Rector v. Thomp. son, Wasb., 67 Pac. Rep. 86. 181. TRUST Resulting Trusts.- Where
one piir chases and pays for property, and causes it to be con: veyrd to another, with the intention that it shall be held in trust for the benefit of third persone, which in. tended trust fails, because not so declired as to be en. forceable, the grantee does not take the beneficialin. terest in the property, but a trust rrsults in favor of the purchager.- In re Davis, U.S. D. C., D. Mass., 112 Fed. Rep. 129.
182. TRUSTS-Substitution of New Trustee.- A trustee substituted for another by order of court becomes the duly authorized trustee from the date of such order, althougb a subsequent decree conditions his appoint. ment upon setilement by the old trustee and upon bis taking an oath.- Caubape v. Barnes, Cal., 67 Pac. Rep. 55.
183. VENDOR AND PURCHASER-Innocent Misrepre. gentations.-That a misrepresentation of the amount of land owned and intended to be conveyed was inno. cent held po delense to a suit for rescission.- Zunker v. Kuehn, Wis., 88 N. W. Rep. 605.
184. VENUE-When Motion Should be Made.- Under 2 Ballinger's Aon. Codis & St. § 4956, a motion for change of venue because a suit is commenced in a wrong county cannot be made at the close of plaintifl's case, though the cause is then dismissed as to the only de. fendant living in such county.-Rector v. Thompson, Wash., 67 Pac. Rep. 86.
185. WATERS AND WATER COURSES-Din ages for Pol. luting Stream.-The measure of damges for pollut. irg a water course being the cost of clearing the stream, or, if that exceeds the value of the property, such value, evidence as to the real value of the prop. erty is admi sibie.- Stevenson v. Ebervale Cual Co., Pa., 50 Atl, Rep. 818.
186. WATERS AND WATER COURSES-T tle of Riparian Owners to Water of Luka.-Riparian owners, though entitled to use water in the outlet of a lake for mill purposes, have no title to the water of the lokas of right, nor right to divert it.-City of Syracuse v. Stacey, N. Y., 62 N. E. Rep. 354.
187. WILLS Contingent Claims.-A contingent claimant against a decedent's estate, whose claim does not become absolute until after the time limited for filing claims in administration proceedings, held entitled to sue legatees in a cause of action under Rev. St. 1898, ch. 141, § 3269.- South Milwaukee Co. v. Murphy, Wis., 88 N. W. Rep. 583.
183. WILLS-Directing Verdict Contest.-Under the statute making the issue as to the validity of a will triable to a jury, a verdict egunst a contestant can only be directed where the evidence would be in sufficient to support a verdict for contestant.- Tbomp. son v. Bennett, Ill., 62 N. E. Rep. 321.
189. WILLS- Estate for Life and Remainder to l sue. - Where a testator devises a residue of his estate dur. ing devisee's natural life, and directs tbat at her decease such portion shall be inherited by her surviving issue, share and share alike, tbe devisee takes only a life estate in the residue.-Hill v. Giles, Pa., 50 All. Rep. 758.
190. WILL! – Evidence as to Undue Influence.Where the probate of a will is contested on the ground of undue influence exercised by testator's wife, evl. dence of his declarations as to how he came to make the will is inadmiss ble.-Appeal of Vivian, Cupp., 50 Au. Rep. 797.
197. Wills-Evidence to Prove Undue Influence.Where the probate of a will 18 contested on the ground of undue influence, testimony of an intimate neighbor ag to the condition of testator's mind, as to being easily influenced or not, is admissible.-Appeal of Vivian, Conn., 60 Atl. Rep. 797.
192. WILLS - - Proper Attestation.-Any act which would indicate to witness that testator intends to give effect to a paper as his will is sumcient.-In re Claflin's Will, Vt., 50 Atl. Rep. 815.
153. WILLI- Recovery of Devise Under Foreign Wii. -An action cannot be maintained by a devises to recovir lands in Pennsylvania under a foreign will, which was not proved as required by the laws of the state, and where no copy was probated in the state, as required by P. L. 136. - De Roux v. Girard's Exr., U.S. C. C. of App., Tuird Circuit, 112 Fed. Rep. 89.
191. WILLS-When Rigbis of Legatecs V st.–Rights of leg tees under a will held to vest upon the death of testator, and not at date specified in the will.- Mur. phey v. Brown, Ind., 62 N. E. Rep. 275.
195. WITNESSES-Cashier's Testimony as to Dealings of Deceased Person With Bank.- A cashier and assistant cashier of a bank held not parties to an action by the bank against an administrator, within Code Civ. Proc. $ 1880, subd. 3, making them incompetent as wil. nesses.-City Sav. Bauk v. Enos, Cal., 67 Pac. Rep. 52.
196. WITNESSES Effect of Assignment on Com. petency to Tustify Against Deceased Person.- Under Rev. St. § 859, a party complainant in a suit against the representatives of persons deceag dis pot a com: petent witness as to transactions with the decedents, notwithstanding an assignment, made pending the suit, transferring all his interest in the subject-matter to others, where he remains a party to the record.-De Roux v. Girard's Eur., U. S. C.C. of App., Third Cir. cuit, 112 Fed. Rep. 89.
197. WITNESSES – Heargo y for Impeachment.-Hear. say evidence held not the legs damaging because in. troduced as an alleged impeachment -- Adams y. De. troit Electric Ry., Micb., 88 N. W. Rep. 634.
198. WITNESSES-Insanily of Witpeeg.-Where pros. ecutirg witness was, on the day of the rendition of the verdict, adjudged insane, his declarations made two months before, should not be excluded; there being nothing to show that he was rottlen sane.- St.te v. Sunith, Wash., 67 Pac. Rep. 70.
199. WITNESSE 8-Surviving HI:asband Against Deceased Wife.-Under Comp. Laws, $ 10,213, a surviving husband was competent, in an action to set aside a deed from him to his wife, to testify to transactions bulween himself and wile showing that the deed was for a vuluable consider tion.- Ward v. Oliver, Micb., 83 N. W. Rep. 631.
200. WITNESSES-Survivors as Witressrs.- Under V. S. § 1237, the survivor to a contract is a competent wit ness for the descendants or guccessors in interest of the deceased party.-Ainsworih v. Stone, Vt., 50 Atl. Rep. 805.
Central Law Journal. was thrown into the infected house and con
fined there twenty-one days. During his confinement and against
his protest ST. LOUIS, MO., MAY 9, 1902.
he forced to be vaccinated twice,
neither of which took effect, and for COMPULSORY VACCINATION AND DETENTION wbich he
the IN A PEST HOUSE AS AN INFRINGEMENT doctors. In the meantime, also, his goods, OF PERSONAL LIBERTY.
valued at $150, which were of a perishable The most tyrannical impulse of a Czar nature, became a total loss, and his horse, of Russia could hardly have suggested any. from lack of food and ill treatment by the thing more subversive of the personal liberty city authorities who undertook to make use of his subjects than the story that comes to of him during the unfortunate man's conus in the report of the recent case of Levin finement, became emaciated and very much v. City of Burlington, 39 S. E. Rep. 822. depreciated in value. On his release he sued
A peddler by the name of Levin, pass the city of Burlington for falşe and illegal ing one day through the town of Bur- imprisonment, charging that he had not lington, North Carolina, for the purpose of
been declared infected by any competent selling bis wares and mercbandise, stopped authority and that the place of bis incarceraover for the night at a certain private board tion was not a house of detention nor a ing house. On the next morning he went
pest house provided for quarantine purposes. with bis horse and wagon to a factory site, In addition to the actual damages already known as Altamaha, nine miles distant from mentioned he alleged loss of trade and said town. A short time after arriving at profits not only during the period of his conthis place, he was followed by a police officer finement but also for a some time afterwards from the city of Burlington wbo placed him because of the refusal of the people to have under arrest by virtue of an alleged warrant anything to do with bim because of his from the mayor of that town. It appeared exposure to small.pox. This “heroic” treatthat shortly after he left, a certain other ment, as the Supreme Court of North Caroboarder at the same place in which he had ling styles it, together with the intense agony taken lodging in Burlington the night before of mind in being so dangerously exposed to had been declared to bave small pox and that such a dread disease, the plaintiff modestly the mayor believed Levin to be infected and claimed to have damaged bim to the extent therefore ordered his arrest. He was brought of five thousand dollars. The court denied back to the town of Burlington and was the liability of either the city or the officers, ordered by the health officers to go to the claiming it to be a case of damnum absque boarding house in which this case of small- injuria, because the injury complained of pox had broken out and where the patient was committed by public officers in the exerwas lying, and stay there fifteen days. Levin cise of a public duty, and engaged in protested that he had never been exposed enforcing a public law for the public good. to small-pox in bis life and had spent the We believe the facts in this case will night before in that place in a room to him- justify our assertion that it is one of the self with no knowledge of any small pox in most serious and unwarrantable encroachthe town and had left in the morning, not ments upon the personal liberty of the citibeing exposed. He earnestly protested
has been committed in recent against being put in the house. He asked to years under the guise of the police power. see the mayor and requested a special exam The case, however, is not one of unusual ination. The mayor refused to see him and severity and frequency. Late years have witignored his request for a medical examina nessed a most dangerous advance upon the tion. He then pleaded earnestly with the liberties of the people until one after another police officer not to confine him in a house of our most cherished constitutional safe. where small-pox was, as he had a great guards bas fallen a victim and a sacrifice to dread of the disease, but to put him in an the insidious encroachment of this inde finable other house, and he would pay all the and apparently uncontrollable power. We expenses. In spite of his protestations be brand it as a most heinous act of usurpation
on the part of a state legislature or of a munic- Candler, 39 S. E. Rep. 893, reminds one of the ipal government to attempt to authorize the disputes of tbe ancient Jewisb rabbis as to how pursuit and arrest of a person, perfectly
many steps taken on the Lord's day would be a
violation of the law. The case just referred to healthy, and his confinement in a pest house
concerned the validity of an obligation executed where bis life is imminent danger from ex- on Sunday conditioned for the personal appearposure to some dread disease. Neither have ance of the principal at a stated term of a superior they any shadow of right to compel a healthy court to answer to a bill of indictment preferred man to submit to the inoculation of bis
against him. The Supreme Court of Georgia
held that although a contract of this character is body with a virus of any description. The
executed on Sunday by the obligatory parties, it most that a legislature or city can do in such cannot be classed as a contract made in the purcases is to quarantine against persons whom suit of a business or the performance of a work they suspect of having been exposed, but within the ordinary calling of one of the parties
to the contract. whom they do not allege to be infected. They can force him out of the town or they ca WILLS-REVOCATION BY ADOPTION OF CHILD keep him from coming into the town, but AND SUBSEQUENT MARRIAGE.-In Wisconsin, as they cannot pursue him and arrest him,
in many otber states, marriage and birth of issue
operate as a revocation of a will made prior to without charging him to be infected, nor
such marriage. Will the adoption of a child have compel bim to submit to vaccination and to the same effect as the natural birth of issue? In confinement in a pest house. We are not the recent case of Glascott v. Bragg, 87 N. W. alone in tbis contention. Several recent Rep. 853, the Supreme Court of Wisconsin beld cases have shown a commendable tendency
that under a statute providing that, for purposes to curb the power of the legislature in this
of inberitance and succession, an adopted child
sball be deemed in law as if be bad been born in direction. In re Smith, 146 N. Y. 68, 40 N.
lawful wedlock of the parents by adoption, the E. Rep. 497; Potts v. Breen, 167 Ill. 67, 47 adoption of a child together with marriage operN. E. Rep. 81; Mathews v. Board of Educa- ate as a revocation of a will previously made, extion (Mich. 1901), 54 Cent. L. J. 54. actly as though such adopted child had been the Whether a city is liable in such cases may be
issue of the marriage. Cases holding to a contrary
doctrine in New York, Indiana and California, doubtful. But certainly, some one is liable.
are under widely and radically different statutes. A similar situation was met by Justice In a recent case in Iowa those cases are considCooley in the case of Van Dusen v. New- ered, and the Difference in the statutes of that comer, 40 Mich. 134, where be held that the state and those otber states is referred to and it was superintendent of a state insane asylum was
held that “the adoption of a child by a testator liable for confining a sane person in the asy
operated as a revocation of a previously executed
will." Hilpire v. Claude , 109 Iowa, 159, 80 N. lum, even though done in apparent good
W. Rep. 332, 46 L. R. A. 171, 77 Am. St. Rep. 523. faith. Objections were made to the liability See also to the same effect: Parsons v. Parsons, of either the state or the superintendent.
101 Wis. 76; Sewell v. Roberts, 115 Mass. 261. Justice Cooley said: “It cannot be that no
MASTER AND SERVANT DECK HAND AND one is responsible. The law of no free coun
MATES ON BOARD SHIP AS FELLOW-SERVANTS. try can tolerate a condition of things under -In a recent issue of the CENTRAL LAW JOURNAL which a person, innocent of crime and we discussed the principles upon which the fel. threatening no injury to himself or to others,
low-servant doctrine rests- 54 Cent. L. J. 329– can be restrained of bis liberty and no per
and in a recent article in 51 Cent. L. J. 264, we
treat of the relation of the doctrine to a ship's son be responsible for the injury he suffers.
company and the liability of the owners of vessels To admit the possibility would be to concede for the torts of mate and other officers. This that arbitrary imprisonment under some cir- latter phrase of the question bas again arisen in cumstances is lawful, and that would be to the recent case of Kelly v. Steamboat Company, conceile that regulated and protected free
50 Atl. Rep. 871, where the Supreme Court of
Connecticut held that where a shipowner bad dom does not exist."
furnished a fender to be used in making the
steamboat fast to the dock when necessary, it is NOTES OF IMPORTANT DECISIONS. not liable to one of the crew for the negligence of
the mate in failing to have such fender used, SUNDAY-- WHETHER EXECUTION OF RECOG- whereby a deck hand trying to make the boat fast NIZANCE ON SUNDAY IS VALID.-The times of to the pier was injured, the mate being a fellowthe Scribes and the Pharisees are nol yet over. servant with such deck band. The court said: A controversy in the recent case of Adams v. - When the owner of a vessel furnisbes proper
guard rails, gang planks, and hatchway covers stream or water course consists of bed, banks, and for the use of the crew, we know of no case that water, and to maintain the right to a water course has gone so far as to hold that he is liable to one it must be made to appear that the water necesof the crew for the negligence of a fellow-servant sarily flows in a certain direction and by regular in leaving the guard rail down, the batchway un channel, with banks or sides, and having a subcovered, or the gang plank insecurely fastened. stantial existence; but it need not be shown that Such negligences are incidental to the use by the the water flows continually as it may be dry at crew of the appliances furnished by the master, times. See also to the same effect Waterworks and the only way the master is required to guard Co. v. Cline, 37 Fla. 586, 20 South. Rep. 780,33 L. against them is to appoint a sufficient number of R. A. 376, 53 Am. St. Rep. 262; Roath v. Driscoll, competent servants. Our conclusion is that the 20 Coon. 533, 52 Am. Dec. 352. Wheelock v. court below erred in holding that the defendant Jacobs, 70 Vt. 162, 40 Atl. Rep. 41, 43 L. R. A. was liable for the negligence of the mate upon 105, 67 Am. St. Rep. 659; Railroad Co. v. Dufour, the facts in this case.
(Cal.),30 Pac. Rep. 783; Cbasemore v. Richards, Other late cases holding to the same conclusion 7 H. L. Cas. 319; Frazier v. Brown, 12 Obio St. reacbed by the Connecticut court are the follow 294; McNab v. Robertson (1897), App. Cas. 134. ing: Benson v. Goodwin, 147 Mass. 237, 17 N. In this last case Lord Watson said: "I see no E. Rep. 517; Kalleck v. Deering, 161 Mass. 469, reason to doubt that subterraneous flow of water 37 N. E. Rep. 450, 42 Am. St. Rep. 421; Geog may, in some circumstances, possess the very hegan v. Steamship Co., 146 N. Y. 369, 40 N. E. characteristics of water running on the surface; Rep. 507; McLaughlin v. Iron Works, 60 N. J. but, in my opinion, water, whether falling from L. 357, 38 Atl. Rep. 677; Sofield v. Smelting the sky or escaping from a spring, which does not Co.. 64 N. J. L. 605, 46 Atl. Rep. 711, 50 L. R. flow onward with any continuity of parts, but beA. 417.
comes dissipated in the earth's strata, and simply
percolates through or along those strata, until it WATERS AND WATER COURSES-RIGHT TO IN
issues tbem at a lower level, through dislocation TERCEPT THE PERCOLATION OF SUBSURFACE
of the strata or otherwise, candot, with any proWATER.-Whether there may be said to be ripa
priety, be described as a 'stream.'” rian rights to the percolation of subsurface waters is not always easy to decide. The whole question seems to turn on the further question whether or
TAXATION PROPER CLASSIFICATION FOR As. not there is any defined underground channel. SESSMENT.-Is,classification of property for taxaThus, in the recent case of Miller v. Black Rock tion purposes run mad? In the recent case of Springs Improvement Co., 40 S. E. Rep. 27, the
Central Pac. R. R. IV. Evans, 111 Fed. Rep. 71, Supreme Court of Virginia heid that where a
the Nevada state board of tax assessors valued a landowner digs a ditch on his own land for pur railroad for the purpose of taxation at so much poses connected therewith, thereby cutting off per inile without first selecting the classes of or diverting underground waters, wbioh, without property to which it belonged. The court, in any permanent or defined channel, have always holding void this classification, said: been accustomed to percolate or ooze through bis
The designation of 'classes of property' land to the land of the adjoining proprietor, and
for the purpose of taxation based on values there form the source of a spring, the damage bears close analogy to the classification of thereby occasioned to such adjoining proprietor
counties and cities based on population for is damnum absque injuria.
the purpose of making improvements, regCooley, in his work on Torts (2d Ed. 689), un ulating salaries of officers, etc. In State doubtedly states the correct rule on this subject Boyd, 19 Nev. 43, 5 Pac. Rep. 735, the when he says: “It may be considered settled supreme court had under consideration a statute law that, if tbe well dug by the one man ruins the attempting to regulate salaries, etc. There is no well or spring of bis neighbor by drawing off its doubt of the right of the legislature to limit the waters, it is damnum absqiie injuria. Probably, if operation of statutes by classification to commuthe subterraneous water were a stream flowing in
nities of a certain number of inbabitants, even a well-known course, it would be different, and though there should be only one such place one through whose land it flowed would be pro within the state, for all have the possibility of tected against its being drawn away from him.” reaching the number designated. State v. DonoIt would seem, however, that one claiming any van, 20 Nev. 75, 79, 15 Pac. Rep. 783. But, as was right in an underground stream would have to said by the court in Re Hennenberger (Sup.), 49 prove its existence, not an easy task in any case. In
N. Y. Supp. 230 : When the legislature goes bethe principal case the court states this rule as fol. yond this, describing a local condition so acculows: "The only difference in the application of rately that it would be beyond a reasonable the law to surface and subsurface streams is in probability tbat it would become generally operascertaining the character of the stream. If it ative, it exceeds the authority delegated by the does not appear that the waters which came to the people, and its enactment becomes a nullity.' surface are supplied by a definite flowing stream, This opinion was affirmed in 155 N. Y. 420, 50 they will be presumed to be formed by fbe ordin N. E. Rep. 61. In Com. v. Patton, 88 Pa. 258, the ary percolations of water in the soil. * * * A court, in referring to an act of like character,