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obliged to avail himself of it. As regards the Tested either by the reasoning of the judges by present defendant, he is not altogether without fault. whom Thorogood v. Bryan was decided, or by the exHe chose his own conveyance and must take the con-planation of Baron Pollock in Armstrong v. Lancashire sequences of any default of the driver whom he thought fit to trust."

It will be observed from the reasoning of the judges in Thorogood v. Bryan that the decision was not placed upon the control the passenger had or might have had over the driver's conduct in driving the omnibus, but was rested upon his selection of the vehicle in which he chose to ride; and the decision applies as well to passengers in public conveyances, where interference with the driver's management of his team, if not resented, would likely be futile, and passengers in railroad trains, where the passenger is absolutely without power to control the running of the trains, as to a passenger by a private conveyance hired for a special occasion. The Court of Exchequer, in the only case I have found in the English courts in which Thorogood v. Bryan was applied, gave effect to the doctrine of that case as against a passenger on a railway train who was injured in a collision between trains of different companies through the negligence of the drivers of both trains. Armstrong v. Lancashire and Yorkshire R. R. Co., L. R., 10 Exch. 47.

Thorogood v. Bryan has been directly repudiated in the English Court of Admiralty (Milan, Lush. Adm. 388; 31 L. J. [P., M. & A.] 105; Chartered Mercantile Bank v. Netherlands, etc., Navigation Co., 9 Q. B. Div. 118; S. C. on appeal, 10 id. 521, 545), and is generally cited in the common-law courts simply as a case that has not been overruled. It was so cited in Armstrong | v. Lancashire and Yorkshire R. Co., and although both the barons disclaimed any dissatisfaction with the case, Pollock, B., made the observation that "the only difficulty in it arises from the use of the word 'identified' in the judgment. If it is to be taken that by the word 'identified' is meant that the plaintiff, by some conduct of his own, as by selecting the omnibus in which he was travelling, has acted so as to make the driver his agent, this would sound like a strange proposition, which could not be entirely sustained. What I understand it to mean is that the plaintiff, for the purpose of the action, must be taken to be in the same position as the owner of the omnibus, or the driver." This comment of the learned baron seems to me to be hostile to the reasoning in Thorogood v. Bryan, for that decision was placed expressly on the ground that by selecting the conveyance the passenger had so identified himself with the driver that he must be considered a party to the driver's negligence-a legal sequence that could arise only from the identification being such as that quoad hoc the driver became the agent of the passenger; for the contributory negligence which shall defeat the action must in some sense be the act of the party injured. Paulmier v. Erie R. Co., 5 Vroom, 151. The substitution of the words "in the same position" for "identified," implies that the theory of the doctrine is that a person doing a lawful act may, without any fault on his part, either personally or imputable to him as being the act of his agent, be placed in a position in which he will be debarred from recovering for an injury received from the wrongful act of a third person-a proposition wholly at variance with legal principles. A party may, by his act, be in the position in which he receives an injury, and yet not be deprived of his right of suit against a wrong-doer. A person sustaining an injury from the negligence of another is precluded from his action on the ground of contributory negligence only where there has been some fault on his part which was the proximate cause of the injury. "Nothing will preclude him from recovering but such conduct as puts him in the wrong." ."2 Thomp. Neg. 1154; N. J. Express Co. v. Nichols, 4 Vroom, 435, 439.

and Yorkshire R. Co, the doctrine of that case is equally untenable. The decision has not escaped criticism, nor has it passed in the English common-law courts without indications of distrust, if not disapproval. It was cited by counsel in Waite 7. N. E. P. Co., F. B. & E. 719, and both in the Queen's Bench and in the Exchequer Chamber the court declined to express any opinion upon it, and decided the case on other grounds. It was criticised and strongly condemned by Messrs. Keating and Willes (afterward judges of the Court of Common Pleas), in the notes to Ashby v. White, 1 Sm. Lead. Cas. [*342], 505, and the criticism has been referred to by English judges, if not with approval, at least without expression of dissent therefrom. Tuff v. Warman, 2 C. B. (N. S.) 750; Waite v. N. E. R. Co., E. B. & E. 728; Spaight v. Tedcastle, 6 App. Cas. 217. And this criticism is placed by Mr. Addison in the text of his work on Torts. Add. Torts, 374. Mr. Bigelow concludes a review of the cases, including Thorogood v. Bryan, with the expression of his opinion that "the only case where the socalled doctrine of identification or imputation can be applied is where the passenger actually participates in the carrier's fault, as by urging him on or by plainly manifesting approval of his course, and thus encouraging it." Big. Lead. Cas. 726-729.

Thorogood v. Bryan has met both with approval and disapproval in the courts of this country. It was expressly repudiated by the Supreme Court of this State in Bennett v. N. J. R. Co., 7 Vroom, 225. In that case a passenger in a horse-car, who was injured by a collision between a train of the defendant and the horsecar, sued the railroad company, and it was held that the driver of the horse-car was not the agent of the passenger so as to render the passenger chargeable with the negligence of the driver. The chief justice, in delivering the opinion of the court, commenting on Thorogood v. Bryan, said: "This case stands, I think, in point of principle, alone in the line of English decisions, and the grounds upon which it rests seem to me inconsistent with legal rules. The reason given for the judgment is that the passenger fn the omnibus 'must be considered as identified with the driver of the omnibus in which he voluntarily becomes a passenger,' and that the negligence of the driver is the negligence of the passenger; but I have entirely failed to perceive how it is that the passenger in a public conveyance becomes identified in any legal sense with the driver of such conveyance. Such identification could result only in one way that is, by considering such driver the servant of the passenger. I can see no ground upon which such a relationship is to be founded." The chief justice adds: "It is obvious that in a suit against the proprietor of the car in which he was a passenger there could be no recovery if the driver or conductor of such car is to be regarded as the servant of the passenger. ** * The doctrine of the English case appears to convert the driver of the omnibus into the servant of the passenger for the single purpose of preventing the passenger from bringing a suit against a third party whose negligence has co-operated with that of the driver in the production of the injury. I am compelled to dissent from such a proposition."

Callahan v. Sharp, 27 Hun, 85, was also cited as a case in point adverse to the ruling of the court below. In that case the suit was brought on the statute to recover damages for causing the death of a child thirteen years old. The facts were that the mother of the child hired a coach and driver from a livery-stable to carry her and her children to a funeral. The coach in crossing the defendant's railroad came in collision

with a passing train, causing the death of one of the children. It was held by Dykeman and Gilbert, JJ. (Barnard, P. J., dissenting), that as the driver of the coach was subject to the control and commands of the mother, his negligence was imputable to her, and that as the mother and children were engaged in a joint enterprise, in which she acted for herself and them, the negligence so imputed to her might be attributed to deceased, and prevented a recovery by his representatives. But it appears from a note in Abbott's Am. Dig. for 1883-84, p. 344, § 94, that the suit was tried a second time on the theory of the reversing opinion in 27 Hun, and that the judgment in the second suit upon the same facts was in turn reversed by the same court (Cullen, J., and Barnard, P. J., concurring, and Dykeman, J., dissenting), on the ground that the deceased was not chargeable with the driver's negligence because the driver was the employee of the stable-keeper, and not under the mother's control in the management of the team, and because, if it were otherwise, the deceased, being an infant of tender years, was sui juris. On appeal, this last decision was affirmed by the Court of Appeals without an opinion. Callahan v. Sharp, 95 N. Y. 672. The final result in this case seems to be adverse to the contention of the plaintiff in error, and prior decisions of the same court are to the same effect. Chapman v. N. H. R. Co., 19 N. Y. 341; Colegrove v. N. Y. & H. R. R. Co., 20 id. 492; Webster v. H. R. R. Co., 38 id. 260; Robinson v. N. Y. C. R. Co., 66 id. 11.

In the principle which governs in this respect there is no distinction between a public conveyance in which a passenger takes passage and a coach hired by him from a livery for a particular journey; nor is the situation changed by the fact that the negligence of the driver is invoked simply as contributory negligence to exclude the passenger from his action against a third person for an injury resulting from the negligence of both parties. As the chief justice points out in his opinion in Bennett v. N. J. R. Co., the identification of the passenger with the driver for the purpose of fixing on the former responsibility for the latter's act, can result only from considering the driver as the servant of the passenger; and the driver cannot be converted into his servant for the single purpose of preventing the passenger from bringing suit against a third party whose negligence has co-operated with that of the driver in the production of the injury. The identification must be so complete that the passenger would not only be debarred from a suit against the proprietor of the coach for the driver's negligence in the particular instance, but would also be responsible to third persons for injuries sustained by the carelessness of the driver in the course of the journey. Quarman v. Burnett and kindred cases show that the relation of master and servant is not created by such a hiring, and that such a responsibility does not arise from an employment under it. "There may," as was said by Baron Parke in Quarman v. Burnett, "be special circumstances which may render the hirer of horses and servants responsible for the neglect of a servant, though not liable by virtue of the general relation of master and servant. He may become so by his own conduct, as by taking the actual management of the horses, or ordering the servant to drive in a particular manner which occasions the damage complained of, or to absent himself at one particular moment, and the like." McLaughlin v. Pryor, 4 M. & G. 48; S. C., 1 Car. & M. 354, is a precedent of an action successfully prosecuted against the hirer of a carriage and horses for a trespass committed by the

driver, who was the servant of the man who let the carriage-the defendant's liability for the driver's act being enforced on the ground that he sat upon the box

own.

and countenanced, encouraged and assented to the driver's act, and made the latter's negligent act his It may also be that a passenger in a hired coach may, by words or conduct at the time, so sanction or encourage a special act of rash or careless driving as to commit an act of negligence which will debar him from a suit against a third person for an injury resulting from the co-operating negligence of both parties. But for whatever purpose the negligence is invoked, whether as a cause of action for an injury done by the driver, or as contributory negligence to bar an action by the passenger against a third person for an injury sustained, the negligence to be imputed to the passen ger must be such as arises in some manner from his own conduct. The negligence of the driver, without some co-operating negligence on his part, cannot be imputed to the passenger in virtue of the simple act of hiring. If the law were otherwise, not only the hirer of the coach, but also all the passengers in it, would be under a constraint to mount the box and superintend the conduct of the driver in the management and control of his team, or be put for remedy exclusively to an action against the irresponsible driver or equally irresponsible owner of a coach taken, it may be, from a coach-stand, for the consequences of an injury which was the product of the co-operating wrongful acts of the driver and of a third person, and that, too, though the passengers were ignorant of the character of the driver, and of the responsibility of the owner of the team, and strangers to the route over which they were to be carried.

In this case there were no special circumstances which would make the driver's negligent act the act of the plaintiff. The plaintiff hired the coach to carry himself and four nieces to a particular place. The journey was along a public road not specially dangerous except in the fact that it crossed the defendant's railroad. The coach was an ordinary closed coach, with two seats inside and a driver's box in front, and a window on each side. The plaintiff and two of his nieces occupied the back seat. The plaintiff testified that be told the driver before starting to be careful about crossing the railroad; that the driver slackened up as he approached the crossing; that he (the plaintiff) listened all the time, aud made it his particular business to look and see whether any train was coming; that he did not hear any whistle or bell, or the approaching train, and was not aware of the approach of the train until it was right upon them. If the driver was negligent in venturing upon the track, the plaintiff neither encouraged his negligent act nor did he contribute to it by any negligence of his own. The judge's refusal to charge that the driver's negligence was imputable to the plaintiff was correct.

The judgment should be affirmed.

WATER-PERCOLATION-FOULING NEIGHBOR S

WELL.

ENGLISH COURT OF APPEALS, 52 L. T. REP. (N. S.) 942.

BALLARD V. TOMLINSON.

The defendant discharged sewage from his house into a well on his premises from which it percolated into a well on the plaintiff's adjoining premises and polluted the water. Held, that the plaintiff was entitled to an injunction and to damages. [Reversing 50 L. T. Rep. (N. S) 230; 26 Ch. Div. 194; 30 Alb. L. Jour. 43.]

THE opinion sufficiently shows the facts.

Cookson, Q. C., and Webster, Q. C., and De Castro, for appellant.

Sir F. Herschell (S. G.), Warmington, Q. C., and Vaughan Hawkins, for defendants.

BRETT, M. R. As the proposition of law which is raised by this case seems to all of us clear, we think it right to give judgment at once. The defendants were possessed of a well upon their own property which at one time they used merely as a well, but afterward in a manner inconsistent with its being merely a well, as they allowed the sewage arising from the use of their buildings to go into the shaft of such well. Now it seems to me, that the shaft of that well is an artificial thing, and that the defendants therefore collected a quantity of sewage into an artificial reservoir. The plaintiff, at a considerable distance from this well (the distance to my mind is wholly immaterial), has a well on his own property of considerable depth which is lower than the bottom of this artificial shaft or well of the defendants. The collected sewage in the artificial shaft on the defendants' property has gone through the sides or bottom of this well into what is called the percolating water below the defendants' lands. It is said on behalf of the defendants, that but for the mode in which plaintiff uses his well by pumping, the sewage on the artificial shaft on the defendants' property would not have gone into the percolating water beneath his land, or if it had it would have remained on his land, or at all events, it never would have gone into the plaintiff's well. In the result, when the plaintiff used his own well by means of the mechanical pump, it is clear that the water which then came into his well from the percolating water beneath his own land came there adulterated by the sewage which had been in the artificial shaft in the defendants' well. Then arises the question, whether the plaintiff, under the circumstances, can maintain an action against the defendants. Now what are the rights of the parties? It seems to my mind to be clear from the decisions that no one has, at any time, any property in water percolating below the surface of the earth, even when it is under his own land, but it is equally clear that everybody has a right to appropriate that percolating water, at least while it is under his own land, to the extent that he may take it all so as to prevent any of it going on the land of his neighbor. But his neighbor below him, according to the flow of water, has an equal right before the person above has appropriated it to take it all. He has a right to take the water from the percolating stream under his own land to this extent, that he may thereby cause the water which is under the land above him to come on his own land when it otherwise would not, and then to take that and so on until he has absolutely dried the land above him. This percolating water below the surface of the earth is therefore a common reservoir or source, in which nobody has any property, but of which everybody has, as far as he can, the right of appropriating the whole. Then arises the question, has one of those who have an unlimited right of appropriation a right to contaminate that common reservoir or source as against those who have an equa! right with him to appropriate when he does not, or is he bound not to do any thing which will prevent any body to whom that unlimited right of appropriation shall come having such water unaltered in quality? Now it has been said by the Solicitor-General in his clear argument, that when the defendants pollute this common source under their own land they do not pollute any water in which the plaintiff has any property. That is quite true. The plaintiff has no property in that water whilst it is under the defendants' land, nor indeed whilst it is under his own land, and if all that could be said was that the common source was contaminated before the plaintiff had appropriated any part of it, the plaintiff could not, to my mind, main.

tain any action in respect of that contamination. Suppose a man had tapped this common source some distance off his own land for the purpose of experiment, and found it was contaminated before it would come under his own land. I think, under those circumstances, he could not maintain an action because he had not appropriated the water and therefore no injury was done to him at that time. But it does not seem to me to follow from that that he cannot maintain an action when water which he has appropriated has been contaminated by something which another person has done to that common source. In other words, it seems to me that although nobody has any property in the common source, yet everybody has a right to appropriate it and to appropriate it in its natural state, and no one of those who have a right to appropriate it has a right to contaminate that source so as to prevent his neighbor from having the full value of his right of appropriation. Then the next point taken by the solicitor-general was this. Assuming it to be true that there is such right to appropriate, yet if the person who has such right only appropriates by artificial means, and does so to such an extent that if he did not use those artificial means the water he would take would not be contaminated, then the polluted water must be said to be appropriated by him in that state by his own act, and therefore he cannot maintain the action. I cannot think that is a true proposition. The principle of natural user does not apply at all. The plaintiff, if he has the right to use any thing in nature, has a right to exercise that user by all the skill and invention of which man is capable, and it seems to me that so long as the plaintiff uses only lawful means as against his neighbor, however ingenious or however artificial those means may be, his right to appropriate the common source is not diminished because he uses the most artificial or the most ingenious methods. Therefore however he may appropriate the water from the common source by the use of such artificial means, he has a right to have the common source uncontaminated by any act of any other person. Neither does it matter whether the parties are or are not contiguous neighbors. If it can be shown in fact that the defendants have adulterated or fouled the common source, it signifies not how far the plaintiff's land is from their laud. The nearest case to the present I take to be the case of Womersley v. Church, 17 L. T. Rep. (N. S.) 190. I think that case does show that the first proposition of the solicitor-general is wrong, but I do not think that it governs the second point taken by him. I think that the second point is partly noticed in the case of Whaley v. Laing, 2 H. & N. 476; 3 id. 675, but it does not in my opinion want any authority. I disagree with the decision of Pearson, J., on this ground, that although nobody has any property in the percolating water, yet such water is a common source which everybody has a right to appropriate, and that therefore no one is justified in injuring the right of appropriation which everybody else has.

COTTON, L. J. I also am of opinion that the decision appealed from is erroneous. As I understand the judgment of Pearson, J., on the first point, namely, that this was underground water in an indefinite channel, he thought that his decision was a necessary consequence of Chasemore v. Richards, 7 H. L. Cas. 349. Now Chasemore v. Richards simply decides this, as I understand it, that every man has a right to take all the underground water (by which I mean water going in no definite channel) which he can find in his own land, notwithstanding that the effect of his doing so may be that his neighbor will have no underground water in his land, or that the stream which he owns will be diminished in consequence of the underground water which had been so appropriated not coming into that

the circle which the water is drawn from, and as he is
exercising his own right to take the water which is
under his soil, in my opinion he can maintain a right
of action against the defendants where the natural
consequence of his exercising his own right is that
there comes water which has been polluted by the act
of the defendants. The plaintiff has a right to take
all the water under his soil as far down as human skill
can get it, and pumping machinery being an appro-
priate means of getting the water which is in the un-
derground stratum, the defendants cannot, in my
opinion, be held not liable because of the plaintiff's
using powerful means of getting the water, water
comes to his well which would not otherwise have
done so.
In my opinion the plaintiff is entitled to
judgment against the defendants.

LINDLEY, L. J.-The question decided in Acton v.
Blundell, 1 L. T. Rep. (O. S.) 207; 12 M. & W. 324; and
Chasemore v. Richards, 7 H. of L. Cas. 349, was the

stream. That in no way decides the present case. Let us consider what the underground water is. Such water, whether in the chalk or other strata, is a natural incident of the land which the man has who owns the surface, unless he has parted with the minerals below. According to the decision in Chasemore v. Richards, the owner of the land has as a natural incident to his ownership a right to avail himself of that incident to whatever extent he chooses, even though the consequence may be that he takes not only the water which at first was under his property, but all the adjoining water which by natural force comes under the land when he has taken that which was there in the first instance. But here what is it the defendants are doing? They are not using the natural right; they are not taking the water, but they are putting upon their land filth which gets down into the underground water in the water-bearing stratum, which is partly under their land and partly under that of their neigh-right of a land-owner to remove underground water bor. They are therefore in no way exercising that right which a person who draws the water under his own land is exercising. All that the House of Lords decided was, that a plaintiff could not complain of a defendant exercising that natural right in taking the water which for the time being was under his own soil. But here the defendants are not doing that, but are simply putting filth on their own land in such a way as that it gets into the underground water in the stratum common to themselves and other persons. In my opinion therefore it is no necessary consequence of Chasemore v. Richards to say that here the plaintiff cannot complain of the act of the defendants. Then why has not the plaintiff a right of action? The defendants, not by exercising a natural right incident to the ownership of land, but by putting filth on their laud, interfere with the exercise by the plaintiff of a natural right incident to the ownership of his own land, and although while dirty water is in the stratum under the defendants' land, or even perhaps while it is under the plaintiff's land, so long as he is not desiring to appropriate and use it, the plaintiff has no right of action, yet as soon as the act of the defendants interferes with the beneficial use by the plaintiff of that right incident to the ownership of the land, in my opinion he has a right of action. Of course if what the defendants were doing was a natural use of their land - that is to say, an exercise of a natural right incident to ownership - the plaintiff could not complain. But the defendants are not doing that. No one can say that putting filth on your own land in such a position, and with such little care, that it gets down to the stratum where the water is common to you and to your neighbor, or to any other owner of land, is a natural use of the land. In my opinion therefore, subject to the other point on which Pearson, J., relied, if the defendants have, as on the evidence they must be taken to have done, by their filth interfered with the plaintiff's natural right of taking this water, they are liable to an action; and in fact the solicitor-general practically admitted that, because he said if the water had gone by natural force of gravity from the defendants' land to the plaintiff's, he could hardly contend that the defendants would be liable. But then it is said that it is in consequence of the plaintiff's own act that he gets the water polluted. Now in one sense that is true: that is to say, if the plaintiff did not draw water from this stratum there would be no polluted water going down to the water which was under his land; but the plaintiff is not seeking to get water from the defendants' land. He is seeking merely to exercise his natural right of getting the water from his stratum. The water comes not simply from the defendants' well; it comes from that cone or section of

from his own land when that water did not flow in
any visible defined channel. The court decided that
every owner of land has a right to sink a well in his
own land, and to take from his well all the water he
can get, and that as every land-owner has this right,
no one can maintain an action against another for
exercising that right, even although by exercising it
he drains underground water from the plaintiff's land,
and so deprives him of water which would otherwise
come to his well. The alternative was to hold that no
one could take water from his own well to such an ex-
tent as materialy to affect the supply to those whose
wells were fed from the same source as his own. This
alternative was considered too inconvenient to be laid
down as law, and the court was consequently driven
to reconcile the conflicting rights of neighboring land-
owners in the way it did, and to draw a distinction as
regards the right to get naturally-supplied water, be-
tween water in defined and visible channels and water
percolating through the soil and not yet in any defined
visible channel. How far the distinction was sound it
is useless now to inquire; it is settled in law by the
highest judicial authority. But the reasons for the
distinction must be borne in mind, or the decisions
establishing it may be misunderstood, and be made
the basis of reasoning leading to results which are as
startling as they were unforeseen. The right to foul
water is not the same as the right to get it, and in my
opinion does not depend on the same principles.
Prima facie every man has a right to get from his own
laud water which is naturally found there; but it fre-
quently happens that he cannot do this without dimin-
ishing his neighbor's supply. In such a case the neigh-
bor must submit to the inconvenience.
But prima
facie no man has a right to use his own land in such a
way as to be a nuisance to his neighbor, and whether
the nuisance is effected by sending filth on to his neigh-
bor's land, or by putting poisonous matter on his land
and allowing it to escape on his neighbor's land; or
whether the nuisance is effected by poisoning the air
which his neighbor breathes, or the water which he
drinks, appears to be wholly immaterial. If a man
chooses to put filth on his own land, he must take
care not to let it escape on his neighbor's land (Tenant
v. Goldwin, 1 Salk. 21, 360), and not let it poison the air
which reaches it. Comyn Dig., Action on Case for
Nuisance, A. So if a man chooses to poison his own
well, he must take care not to poison waters which
other persons have a right to use as much as himself.
To hold the contrary, on the ground that the water is
not their property until they get it, and that it is poi-
soned before they get it, is to take an inadequate view
of the subject, and to overlook the fact that the law of
nuisance is not based exclusively on rights of property.
Light is not property, and yet if a mau has a right to

have it come to his windows he can maintain an action against those who prevent it from so coming. So air is not property, but a man who poisons the air which another has a right to breathe commits an actionable wrong. Upon precisely the same principle underground water which supplies a well may not be the property of the owner of the well, but he has a right to take and use such water, and upon principle he appears to me to have a right of action against those who poison what he has a right to get. If indeed the well-owner had no right to get unpolluted water, he would have no right of action, but it lies upon those who deny this right to maintain their position. Prima facie, at all events, the right of a man to get water from his well is to get the water as nature supplies it, and if any one contends that he has a right to pollute the natural supply he must establish such right. A right to foul a stream may be acquired by prescription, and possibly a right to foul an underground basin of water might be similarly acquired, but no such question arises in this case. Upon principle therefore, and independently of authority, the judgment below cannot be sup ported. On turning to the authorities, there is not one which warrants the judgment, whilst there are at least three which are difficult to reconcile with it. Womersley v. Church, 17 L. T. Rep. (N. S.) 190; Hodgkinson v. Ennor, 4 B. & S. 229; and Whaley v. Laing,

2 H. & N. 476; 3 id. 675. These decisions show that prima facie one man has no right to foul water which another has a right to get; and if he has a right to get it, the fact that by pumping he draws it partly from the defendant's land is immaterial. The moment any water is taken out of the well, by whatever means, its place is supplied by natural causes operating on all the surrounding water which supplies the well, and if the well is used at all, and any of such surrounding water is poisoned by soluble matter, it will inevitably find its way into the well. Probably the same thing would take place, though more slowly, by simple diffusion without pumping; but however this may be, the fact that the plaintiff has used a pump to get water out of his well, and has thereby drawn poisoned water from the defendants' land, does not deprive the plaintiff of his right to maintain an action against the defendants for poisoning water which supplies the plaintiff's well. In my opinion the decision appealed from ought to be reversed. The plaintiff is entitled to an inquiry as to the damages he has sustained, and to an injunction and to the costs of the action and of the appeal.

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EVIDENCE -RES

NEW YORK COURT OF APPEALS ABSTRACT. MORTGAGE SURPLUS MONEYS GESTE.-The court will not destroy a mortgage upon a foundation of a guess and in the absence of satisfactory evidence impeaching it. In an action involving the validity of a mortgage the mortgagor's declarations at the time of the delivery of the mortgage as to the purpose of such delivery are elements of the res gesta. The death of the mortgagor does not preclude the book-keeper of the mortgagee from testifying to such declarations, he not being a party to the action, or interested in its event. Germania Life Ins. Co. v. Rae. Opinion by Finch, J.

[Decided June 26, 1885.]

MUNICIPAL CORPORATION-REPAVEMENT OF STREET -ASSESSMENT FOR-SPECIAL REMEDY TO VACATE.

An additional width of flagging ordered by the city to be laid on a sidewalk already paved is a repavement within the rule requiring a petition of a majority of the property owners along the line of improvement; and this is so, although the existing width is left undisturbed. L. 1882, ch. 410. The decision in the Matter of Grube, 81 N. Y. 139, did not hold the

contrary. There the roadway had never been paved at all, on any plan or of any width, and the ruling was that there was no repavement of the roadway because the sidewalks had been flagged. It follows that there was no authority for this assessment, since the property owners rested contented with the pavement as originally laid and made no petition for a change, or for the additional width, and the petitioner would be entitled to have the assessment vacated but for another and peremptory enactment which forbids. The special remedy given to property owners for illegal assessments by the act ch. 338, Laws of 1858, is by ch. 550 of the Laws of 1880, restricted to reducing the assessment to the fair value of the actual improvement made. But the property owner may still challenge the validity of the assessment whenever his property is seized under it, or it is made the foundation of proceedings against him. Petition of Smith to vacate, etc. Opinion by Finch, J.

[Decided June 26, 1885.]

SURETY OFFICIAL BOND-MISAPPROPRIATION OF FUNDS.-Bonds given by a public officer for the faithful performance of his duties include all such duties as may be added to the office, or imposed upon the officer as such. Prior to 1871 the treasschool moneys in common with other funds of the city, urer and tax receiver of the city of A. received the and paid them out on warrant of the city officers. By Laws 1871, chap. 93, § 19 all moneys levied and raised for the support of the public schools of that city, together with the public moneys received from the State, or from other sources belonging to the school fund, are required to be paid to the city treasurer and tax receiver in trust, to be by him kept separate and distinct from other moneys, and to be paid out on orders signed by the president and secretary of the board of education; and the treasurer and tax receiver, and the sureties on his official bond are declared to be liable for any default, delinquency or misconduct in relation to such trust, and in that event it is made the duty of the board of education to commence suit against the officer and his sureties to recover sums diverted to other purposes.

In an action upon the official bond of

a treasurer and tax receiver, conditioned for the due performance of the duties of his office, for an alleged misappropriation of moneys belonging to the school fund, held, that the bond extended to and protected the school fund, and that the sureties thereon were liable for the misappropriation, and that although the city was named as the obligee in the bond, the action was properly brought by and in the name of the board of education. Sutherland v. Carr, 85 N. Y. 105; People v. Vilas, 36 N. Y. 469. Board of Education v. Quick. Opinion by Finch, J. [Decided May 5, 1885.]

ASSIGNMENT FOR CREDITORS-RECOVERY OF MONEY PAID BY MISTAKE-POWER OF COUNTY COURT UNDER GENERAL ASSIGNMENT ACT.-When an assignee for the benefit of creditors has by mistake paid over to a creditor a portion of the proceeds of the property assigned, to which a preferred creditor was in fact entitled, the County Court has power under the General Assignment Act, upou petition of the creditor entitled to the fund, and upon notice to the one receiving it, to order the latter to return the amount received to the assignee, to be by him paid out as directed by the assignment. Walker v. Hill, 17 Mass. 380; Lupton v. Lupton, 2 Johns. Ch. 614; Trustees v. Quinn, 3 Redf. 514. So too an action might have been maintained by the bank against these appellants, to recover the trust fund thus improperly diverted from it to their hands by the trustee. Matter of Morgan. Opinion Per Curiam.

[Decided May 5, 1885.]

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