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ordinarily will be sufficient. 1. An express ratification; 2. Acts which imply an affirmance; 3. The omission to disaffirm in a reasonable time. The particular acts which constitute a ratification must necessarily depend, to a great extent, on the nature of the contract. Where it is executed and beneficial to the infant, as where he has purchased real estate, it vests in him the freehold until he disagrees to it, and the continuance in possession after he is of age is an implied confirmation of the contract. So as to a lease. Delano Blake, 11 Wend. 85; Jones v. Phoenix Bank, 8 N. Y. 228. And an infant cannot be permitted to retain personal property purchased by him, and at the same time repudiate the contract upon which he re

Budd, 2 id. 191; Deason v. Boyd, 1 Dana, 45; Cheshire v. Barrett, 4 McCord, 241; Ottman v. Moak, 3 Sandf. Ch. 431. He who asks equity must do equity. In the case at bar the purchase was a joint

them, there was evidence of negligence. The act of firing up, like that of sounding the whistle or blowing off steam, is one necessarily incident to the running of trains, not continuous but occasional, and so to some extent capable of being regulated in its use; and it may be negligent to do it in places where there are likely to be persons who may be endangered by it, and where its use can be avoided, as at stations and highway crossings, and in short portions of the railroad near a highway. But we think that the right to fire up an engine at any particular place must depend upon the character of the place, and not upon whether there happens to be a person near at the moment. If the defendant had a right to fire up its engine somewhere within the space where its road adjoins the high-ceived it. Kitchen v. Lee, 11 Paige, 107; Lynde v. way, the firing up there is one of the ordinary and necessary incidents of running the train against which travellers on the highway must guard themselves. The lawfulness of the act cannot depend upon whether a traveller happens to be at such a distance from the engine that he will not be endangered by the smoke caused by it, or in such a position that he cannot be seen by the fireman or engineer. If it is their duty to see one traveller outside the location of the railroad it is their duty to see how many travellers are there, and to observc the position, direction and speed of each, the speed of the engine, the state of the atmosphere, the direction and force of the wind, the character of the coal used, and other circumstances which may determine whether all travellers are and will continue to be, until the smoke shall be dissipated, in such positions that their horses will not be affrighted by it. Being under no obligation to watch for travellers on the highway, the defendant could not have been guilty of negligence in not seeing and avoiding the plaintiff." Consult Knight v. Goodyear India Rubber Glove Mnfg. Co., 38 Conn. 438; S. C., 9 Am. Rep. 406; Billman v. Indianapolis, etc., R. Co., 76 Ind. 166; S. C., 40 Am. Rep. 230.

In Philpot v. Sandwich Mnfg. Co., Nebraska Supreme Court, September, 1885, 24 N. W. Rep. 428, it was held that if an infant purchases personal property, and gives his promissory note therefor, he cannot, on arriving of age, retain the property and plead infancy as a defense to the note. The court said: "In this country the courts at the present time generally divide the contracts of an infant into those for necessaries, which are binding upon him, and other contracts which are voidable at his election on coming of age. The well-settled rule therefore is that a negotiable note of an infant is not void, but voidable only. Goodsell v. Myers, 3 Wend. 479; Wright v. Steele, 2 N. H. 51; Best v. Givens, 3 B. Mon. 72; Keil v. Healey, 84 Ill. 104; Irvine v. Irvine, 9 Wall. 617. After an infant has arrived at the age of twenty-one years he may disavow or ratify any contracts not made for necessaries. In the absence of any statute providing how a contract shall be ratified, any one of three modes

one.

The plaintiff after coming of age, so far as appears, made no offer to return the property, but still retains possession. He also made payments on the notes. This we regard as a sufficient affirmance of the contract. The law which enables a party who has purchased property during infancy to disaffirm on coming of age is to be used as a shield and not as a sword; as a means by which he may be discharged from a contract which he deems prejudicial. The object is not to enable him to rob others of their property, but upon making restitution to be discharged from the contract." To the same effect, Hall v. Butterfield, 59 N. H. 354; S. C., 47 Am. Rep. 209. But it has been held that if he has expended or wasted the consideration, and has no other property, he may disaffirm without restoring the consideration. Green v. Green, 69 N. Y. 553; S. C., 25 Am. Rep. 233; Miller v. Smith, 26 Minn. 248; S. C., 37 Am. Rep. 407.

In Missimer v. Phila., etc., R. Co., Pennsylvania Common Pleas, October, 1885, Leg. Int., October 9, 1885, it was held that a railroad company is not bound to put screens at the windows of its cars, nor to guard its track so as to prevent persons from throwing missiles through the car windows. The court said: "Since the case of Railroad Co. v. McClurg, 6 Sm. 294, it has been settled law in this State that a railroad company is not bound to put guards or screens on its car windows to prevent passengers from negligently putting their arms out and getting injured. See also Railroad Co. v. Rutherford, 7 Am. Law Reg. (N. S.) 476, where the Supreme Court of Indiana decided the same thing. Plaintiff in this case however asks us to say that it is the duty of the railroad company to screen its car windows effectually, not against the negligence of its passengers, but against stones or other missiles that may be thrown from the outside by persons over whom the company has no control. In addition to this the first count is also based on the failure of the railroad company to so police its

partners themselves. The statute both in its letter and spirit comprehends such real estate as well as individual real estate. Moreover the fiction of a conversion into personalty does not obtain as between the partners themselves and their heirs. It is held by all the American decisions that the property is still real estate as between the partners and their heirs; and it is only where the question arises between them that the statute applies, for the rights of creditors are

track as to prevent the throwing of missiles, etc. No authority has been shown us for the legal implication of any such duties. The practical difficulties would be considerable, and in cases of collision or other accident the dangers of having the windows effectually barred might be far worse than the danger of injury from an occasional missile. It is true that a case might be conceived where repeated acts of stone throwing at a particular locality, expressly reserved by the statute which declares that known to the company, might raise a duty to take some measures of prevention or security to the passenger. But the narr. is not up to the requirements of such a case. The description of the locality of the stone throwing, 'near Phoenixville,' is too extensive and indefinite, and in the averment of plaintiff's injury it is not said that it was received at or near the locality named. This point is more carefully stated in the second count, but that is based exclusively on the assumed duty to screen the windows. With these defects in the declaration, and in the absence of any authority holding a railroad company liable for the acts of outside parties not on its cars, or depots, or platforms, nor in any way subject to its orders or control, we are of opinion that it would be a dangerous precedent to sustain such an action."

PARTNERSHIP REAL ESTATE.
II.

Now this technical interpretation of the statute involved in the reasoning that where the consideration is paid by all, the case is not within the statute, would practically annul it. The object of the statute, according to judicial construction and the notes of the revisers, was to prevent the hiding of real estate from the creditors of the actual owner. And yet under the reasoning of the court in Fairchild v. Fairchild the person who desires to conceal his real estate from the knowledge of his creditors can pay all of the consideration himself except a merely nominal sum, and then have the balance paid by the party in whom the title is vested, and a trust will at once result to the party paying the most of the consideration to the extent of his payment, because the consideration is not paid by one, but by both. If he pays all the consideration but a dollar he loses nothing; if he pays the dollar also, be loses every penny he has invested in the property. The obscurity to which this narrow construction of the statute leads is too palpable to require further comment. The other ground on which the court based its opinion that the statute against resulting trusts did not apply was that the property was in equity personal property, and therefore not within the statute. This reasoning is even worse than the former. The property was in fact real estate. The statute against resulting trusts was enacted, as we have seen, for the purpose of preventing the concealment of a person's beneficial interest in real estate by having the legal title vested in a third person. The forfeiture of all beneficial interests in lands so conveyed to a third person was ordained to deter men from resorting to such devices to defraud their creditors. But partnership real estate is for the purposes of this statute as much real estate as individual real estate. The fiction that it is personal property in equity does not make it any less easy for the partners to conceal it from their creditors by putting the legal title in the name of some person other than the

a trust shall result to the creditors of the party paying the consideration. Now as the fiction of the conversion into personalty does not obtain when the question of the character of the property is raised between the partners themselves or their heirs, on what principle can that fiction be invoked in such a case for the sole purpose of defeating the plain and explicit provisions of a statute founded in public policy? The decision in this case was placed upon another ground that fully justifies the conclusion of the court. The findings of the court at Special Term brought the case clearly within the saving clause of section 53, which excepts from the comprehensive provisions of the statute those cases in which the absolute title is taken in the name of a third person without the knowledge or consent of the person paying the consideration; and the Court of Appeals held that the findings, if sustained by the evidence, were sufficient to sustain the judgment of

the court below. These findings were to the effect that the deed was taken in the name of Fairchild, ore of the partners, absolutely without the knowledge or consent of the other partner, whose heirs claimed a resulting trust.

Having reviewed the authorities on the question as to what will make real estate partnership property, it becomes necessary to determine what are the relative rights of the partners, and their widows, heirs at law, and personal representatives, and firm and individual creditors therein. The English courts have uniformly treated such real estate as personal property for all purposes except the transmission of it on the death of the owners after paying debts and adjusting the equities between the partners. Whether the property will descend to the heirs or will pass to the personal representatives in England is involved in uncertainty, but the weight of the more recent English cases is in favor of the absolute conversion of the realty into personal property for all purposes whatsoever. LordThurlow first inclined to this view in Thornton v. Dixon, 3 Bro. Ch. Cas. 199, that the personal representatives would take; but he subsequently came to a different conclusion, and decided that the heirs took their ancestor's share after paying debts, etc. This decision was followed in Bell v. Phyn,7 Ves. 453, and Balmain v. Shore, 9 id. 500; and the cases of Rowley v. Adams, 7 Beav. Ch. 548; Randall v. Randall, 7 Sim. 271, and Cookson v. Cookson, 8 id. 529, are to the same effect. But in Townsend v. Devaynes (1 Mont. Part. Appx. 101) Lord Eldon overruled the prior decisions, and held that the conversion was unqualified, and that therefore the personal representatives took instead of the heirs. Since this decision the authorities in support of the doctrine enunciated by it are quite numerous. Selkrig v. Davies, 2 Dow P. C. 231; Phillips v. Phillips, 1 Myl. & Keen, 649; Broom v. Broom, 3 id. 443; Houghton v. Houghton, 11 Sim. 491; Morris v. Kearsley, 2 Young & Coll. 139.

The current of authority however does not all run in that direction. The case of Ripley v. Adams, supra, holding a different doctrine, was subsequently decided. The cases of Ripley v. Waterworth, 7 Ves. 429, and Smith v. Smith, 5 id. 189, cannot be considered authority in support of the rule laid down by Lord Eldon, as they both were decided upon the peculiar language of the deeds, which evinced an intention on the

part of the partners to have the land absolutely converted into personal estate.

The recent case of Attorney-General v. Hubbuck, 30 Alb. L. J. 118, seems to settle the law in England in accordance with Lord Eldon's views. The English doctrine, as enunciated by the later cases, is not followed in this country. Not a single case can be found to support it. Every authority is in favor of the more reasonable rule, that when the objects for which the fiction of a conversion was adopted have been accomplished, the principle of equitable conversion has no further application, and that the remainder of the property, or its proceeds in case of a sale, to settle partnership affairs, is real estate, and as such descends to the heirs at law. Yeatman v. Woods, 6 Yerg. (Tenn.) 20; Wilcox v. Wilcox, 13 Allen, 252; Whitman v. Boston R. Co., 3 id. 134; Patterson v. Blake, 12 Ind. 438; Smith v. Wood, 1 N. J. Eq. 82; Buchan v. Sumner, 2 Barb. Ch. 206; Buckley v. Buckley, 11 Barb. 44; Foster's Appeal, 74 Penn. St. 391; Fairchild v. Fairchild, 64 N. Y. 471-478; Houston v. Stanton, 11 Ala. 420; Collumb v. Read, 24 N. Y. 505.

In Fairchild v. Fairchild the court say: "In this country real estate belonging to a partnership for the purpose of paying the debts and adjusting the equities between the members of the firm, is treated as personal property; and what remains is considered and treated as real estate, which would go to the heirs and partners according to their interests. This conclusion was reached by the chancellor in an elaborate opinion in Buchan v. Sumner, 2 Barb. Ch. 165-200, reviewing all the American authorities; and was approved and adopted by this court in Collumb v. Read, 24 N. Y. 505. The English rule gives to the real estate of a partnership the character and qualities of personal property as to all persons; and the remainder, after paying debts and adjusting the equities of the partners, goes to the personal representatives, and not to the heir, probably on account of the great injustice which would result by the laws of inheritance in England. But the American rule, that the remainder descends to the heirs, does not affect the character of the property as partnership effects, except that the incidents and qualities of real estate are revived."

All of the cases agree that real estate which forms a portion of partnership assets is subject to firm creditors in preference to creditors of individual members of the firm, although the title to the property stands in the names of the partners individually, and not as partners. The courts uniformly hold that an individual creditor secures no priority by levying an attachment on the property or by the recovery of a judgment against the partners in whom the legal title, or a portion thereof, is vested. The theory upon which the courts proceed in establishing this doctrine is that the individual creditor can reach only the interest of the debtor after the firm debts are paid and equities between the partners settled. The cases which sustain these principles are very numerous. Ross v. Henderson, 77 N. C. 170; Divine v. Mitchum, 4 B. Mon. 488; Lime Rock Bank v. Phetteplace, 8 R. I. 56; Fowler v. Bailley, 14 Wis. 125; Little v. Snedecor, 52 Ala. 167; York v. Clemens, 41 Iowa, 95; Mauck v. Mauck, 54 Ill. 281; Scruggs v. Blair, 44 Miss. 406; Jarvis v. Brooks, 27 N. H. 37; Bank of Louisville v. Hall, 8 Bush, 672; Willis v. Freeman, 35 Vt. 44; Norwalk Nat. Bank v. Sawyer, 38 Ohio St. 339; Bopp v. Fox, 63 Ill. 540; Hunt v. Benson, 2 Humph. (Tenn.) 459; Blake v. Nutter, 19 Me.16; Uhler v. Semple,20 N.J. Eq.288; Lang v. Waring, 25 Ala. 625; Duhring v. Duhring, 20 Mo. 174; Sigourney v. Munn, 7 Conn. 11; Davis v. Christian, 15 Gratt. 11; Russell v. Miller, 26 Mich. 1; Matlock v. Matlock, 5 Ind. 403; Dupuy v. Leavenworth, 17 Cal. 262; Price v. Hicks, 14 Fla. 565; Buchan v. Sumner, 2 Barb. Ch. 165.

Buchan v. Sumner is a strong case. It was a contest for surplus arising on foreclosure. The real estate was conveyed to Peter Naylor and Palmer Sumner, who were partners, in payment of a firm debt. The conveyance on its face was to them individually, and made them tenants in common. In settling up the affairs of the firma Naylor paid out about $5,000 more than his proportion of the debts. He sued Sumner and recovered a judgment for the amount, but the judgment was not regularly docketed, and therefore never became a lien. Subsequently the Mount Vernon Bank recovered a judgment against Sumner on an individual claim. An action was brought to foreclose a mortgage on the property, and both Naylor and the bank claimed priority of payment out of the surplus. The claim of Naylor was sustained by the vice chancellor, and the decree was affirmed by the chancellor on appeal on the sole ground that while the judgment held by the bank against Sumner was a prior lien on the legal title, yet the property was in equity personal property for the purpose of paying firm debts and settling the equities between the partners; and it was a well settled rule that the claim of a partner for reimbursement for moneys paid out beyond his share in settling partnership debts was prior to the claim of an individual creditor of the other partner; and that therefore the lien of the judgment of the bank was subject to the right of Naylor to such reimbursement. The chancellor said: "Although a court of equity considers and treats real property as a part of the stock of the firm, it leaves the legal title undisturbed, except so far as is necessary to protect the equitable rights of the several members of the firm therein. And in the present case Sumner was the owner of the one-half of the mortgaged premises, subject to the equitable lien of his co-partner thereon, for one-half of the debts which the latter was obliged to pay subsequent to the dissolution of the firm; the personal property of the co-partnership having been disposed of at the time of such dissolution. That prior equitable lien however was paramount to the subsequent legal lien of the appellant by virtue of his judgment, for the separate creditors of the individual partners have no equitable right to any part of the partnership property until the debts of the firm are provided for, and the rights of the partners as between themselves fully protected. The lien which the appellant in this case had obtained upon the legal title of his judgment debtor in one-half of the equity of redemption in the mortgaged premises by the prior docketing of its judgment must therefore yield to the superior as well as prior equitable claim of Naylor upon the same equity of redemption as partnership property." To same effect Everett v. Schepmoes, 6 Hun, 479. These cases establish a doctrine which is but the logical sequence of the two familiar rules that the property is personal estate in equity and that the right of a partner to reimbursement for advances takes precedence over the claims of individual credit

ors.

The question of the widow's right to dower in real estate, which constitutes a portion of partnership assets, is not definitely settled, but the decided weight of authority is in favor of the doctrine that for the purpose of paying debts and adjusting equities between partners, it is to be regarded as personal property as to the widow, and that the only right she has in the property is in her husband's share after paying debts and adjusting equities. The following cases support this rule: Huston v. Neil, 41 Ind. 505; Howard v. Priest, 5 Metc. 582; Cobble v. Tomlinson, 50 Ind. 550; Dyer v. Clark, 5 Metc. 562; Richardson v. Wyatt, 2 Dess. Eq. 471; Greene v. Greene, 1 Ham. (Ohio) 544; Wooldridge v. Wilkins, 3 How. (Miss.) 360.

In Huston v. Neil the court held that it was un

necessary for the wives of partners holding real estate for partnership purposes to join with them in executing a mortgage on or deed of the property; that the right of a widow to dower in such real estate depended upon there being a balance left after discharging firm debts and settling the rights of the partners as between themselves, and that the dower would attach to only her husband's interest in such balance.

In Richardson v. Wyatt, it appeared that the deceased husband of the widow who claimed dower in partnership real estate was indebted to the firm for more than the amount of his share. The court held that she was not entitled to dower. To same effect is Greene v. Greene.

In the case of Smith v. Jackson, 2 Edw. Ch. 28, an attempt is made to show that the decision in Greene v. Greene was placed by the Supreme Court of Ohio upon the ground that the partnership agreement provided for a sale of all firm property on dissolution. But it is difficult to see how an express agreement for sale materially affects the question. In contemplation of law the partners always agree that the estate belonging to the firm shall be disposed of to pay partnership debts when other assets are insufficient. An express agreement to that effect imposes no additional or higher obligation upon them in this respect. In equity it is personal property until debts are paid and equities adjusted, and there is no reason why it should not be personal property as to the widow as well as against the individual creditors. But the case of Smith v. Jackson is an express authority the other way.

The vice chancellor decided that the claim of the widow to dower in her husband's share to the extent that he held the legal title is paramount to the claim of partnership creditors. Jackson and McJimsey were copartners and owned real estate purchased with partnership funds, and which formed a portion of the firm assets. Mortgages thereon were executed by the partners, the wife of Jackson joining with her husband in the execution of the mortgages. Subsequently they were foreclosed, and a surplus realized. After the death of Jackson, McJimsey as survivor of the firm made an assignment to plaintiffs of all the firm's interest in this real estate for the benefit of creditors. Plaintiffs as such trustees claimed the entire surplus, but the vice chancellor decreed that the widow of Jackson must first have her dower out of her husband's share of the surplus to the extent that the legal title to the property from which it came was in him, and that the plaintiffs representing the firm creditors would take only the balance. This case stands alone. It is opposed to all the adjudications on the point; it is contrary to the principles laid down in every other case on the subject, and it cannot be supported by a single respectable argument. The broad principle that partnership real estate is in equity personal property for the purpose of paying partnership debts and adjusting partnership equities is fatal to it. That principle has the sanction of every authoritative decision. Unfortunately therefore the law in this State on this particular point is involved in uncertainty. However a recent decision of Chief Justice Barnard at Special Term in the Second Judicial District is sufficient to overbalance the ruling of the vice chancellor in this case.

In Kirchner v. Vanderburgh, which was an action of partition, it appeared that Kirchner and Vanderburgh were co-partners and had purchased as tenants in common the land which was sought to be partitioned, for the purpose of using the same in the firm business which was the carrying on of a driving park. On the trial it appeared that Vanderburgh was indebted to Kirchner in a sum exceeding the net amount realized on the sale of the property, growing out of partner

ship transactions. Vanderburgh's wife claimed that she had an inchoate right of dower in one-half of the surplus, which should be protected. The court at first so held; but on examination of the question the chief justice came to a different conclusion, and decided that the real estate was personal property in equity for the purpose of adjusting the equities between Kirchner and Vanderburgh; that no dower could attach to Vanderburgh's legal title until after Kirchner had been reimbursed, and that therefore Vanderburgh's wife had no dower right in the surplus. The case is not reported, and the writer has therefore deemed it important to give it publicity in order that "the bane and the antidote may circulate together." See also Cobble v. Tomlinson, 50 Ind. 550, and Barry v. Briggs, 22 Mich. 201.

One important question is correctly decided by the case of Smith v. Jackson. Mrs. Jackson's husband had a two-thirds interest in the firm business, but held the legal title to only one-half of the firm real property. The court held that she was entitled to dower not in two-thirds but in only one-half of the surplus, as that was the extent to which he was seised of the legal title. The vice chancellor said: "Mrs. Jackson is entitled to dower in the share of the estate of which the legal title was coupled with a beneficial ownership in her husband, notwithstanding it was partnership property. It can only extend however to a moiety. The legal title was not in him beyond this, although his interest in the partnership was a two-thirds."

Where, after dissolution of a partnership, one partner takes in his own name a conveyance of real estate in satisfaction of a partnership debt, it is partnership property with all the incidents and qualities of partnership real estate. Gannett v. Cunningham, 34 Me. 62. Partnership real estate may be sold by the survivor for partnership purposes, even though the legal title is not in him. His conveyance transfers the equitable title, and the court will compel the heirs to execute a sufficient conveyance to vest the legal title in the purchaser. Andrews v. Brown, 21 Ala. 437; Bird v. Morrison, 12 Wis. 153; Ludlow v. Cooper, 4 Ohio St. 9; Dupuy v. Leavenworth, 17 Cal. 267; Murphy v. Abrams, 50 Ala. 293; Kleine v.Shanks, 15 Alb. L. J. 16; Delmonico v. Guillaume, 2 Sandf. Ch. 366. And the survivor may sell it, although it is not necessary to sell it to pay firm debts. Solomon v. Fitzgerald, 7 Heisk. 552; McAlister v. Montgomery, 3 Hayw. 94.

But a sale will not be ordered on dissolution unless the interests of all the partners require it. Pierce v. Carey, 37 Wis. 252. An application to the court for leave to sell is the best course to pursue. Buffum v Buffum, 49 Me. 108; Shearer v. Paine, 12 Alb. 589. Of course on a sale for partnership purposes, the surplus, after discharging debts and settling the rights of the partners as between themselves, is real estate and goes to the heirs. Foster's Appeal, 74 Penn. St. 391.

That a valid partnership may be formed for the sole purpose of dealing in real property, is declared to be the law by all the adjudications. Benton v. Roberts, 4 La. Ann. 216; Rowland v. Boozer, 10 Ala. 694; Patterson v. Ware, id. 447; Henderson v. Hudson, 1 Munf. (Va.) 415; Bird v. Morrison, 12 Wis. 152; Smith v. Burnham, 3 Sumn. 463; Chester v. Dickerson, 54 N. Y. 1: Fairchild v. Fairchild, 64 id. 471; Traphagen v. Burt, 67 id. 30; Williams v. Gillies, 75 id. 197.

Whether a valid partnership to deal in real property can be created by parol is not definitely settled. All of the cases above cited, down to the case of Chester v. Dickerson, hold that such an agreement falls within the condemnation of the statute of frauds, and is therefore void.

There are only a few cases which hold or incline to the contrary doctrine. Chester v. Dickerson; Trap

hagen v. Burt; Williams v. Gillies; Dale v. Hamilton, 5 Hare, 369.

In Chester v. Dickerson, the court said: "But suppose two persons, by parol agreement, enter into a partnership to speculate in lands; now do they come in conflict with the statute of frauds? No estate or interest in land has been granted, assigned or declared. When the agreement is made no lands are owned by the firm, and neither party attempts to convey or assign any to the other. The contract is a valid one, and in pursuance of this agreement they go on and buy, improve and sell lands. While they are doing this do they not act as partners and bear a partnership relation to each other? Within the meaning of the statute in such case neither conveys nor assigns any land to the other, and hence there is no conflict with the statute. The statute is not so broad as to prevent proof by parol of an interest in lands; it is simply aimed at the creation or conveyance of an estate in lands without a writing." What was said in this case however was merely obiter. The question has never been settled by the Court of Appeals, but both the dicta of that court and sound reasoning support the doctrine enunciated in Chester v. Dickerson.

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LOCKWOOD Co. v. LAWRENCE.

The law does not lay down any fixed rule for determining what is a reasonable use of the water of a stream by a riparian owner. It is such reasonable use as will not interfere with a like reasonable use by all others affected by his acts, and must depend upon the circumstances of each particular case.

Where several respondents, acting separately and independently of each other, deposit the refuse material and debris arising from the operation of their saw-mills into the same stream, whence by the natural current of the water it is carried down the stream and commingles into one indistinguishable mass before reaching the complainants' premises, where it creates the nuisance and inflicts the injuries complained of

Held, upon a bill in equity for perpetual injunction, that the several acts of the respondents constitute but one cause of action, and all the respondents may be joined in the same bill to restrain the nuisance, and the bill is not multifarious, although the respondents may have different and separate interests.

E. F. Webb and Appleton Webb, for complainants. There was no appearance for Washington B. Bragg, one of the respondents.

J. W. Spaulding and F. J. Baker, for Levi B. Weston and Charles M. Brainard.

Brown & Carver, for other respondents.

FOSTER, J. The bill alleges in substance that the complainants are the owners and in possession of a large amount of real estate, consisting of lands, dams and water-power, including mills and machinery employed in manufacturing cotton into fabrics, situated at Waterville, on both banks of the Kennebec river, not navigable for vessels or boats at that place, their dams extending across said river; that in 1874 they built a manufactory of thirty-four thousand spindles, and in 1882 another of fifty-five thousand spindles,

both of which have been in use since their erection, and that in said business they have a capital of $2,200,000, employing more than one thousand persons, with a pay-roll of about $2,500 each day, and an annual production of $1,300,000; that they are entitled to the natural flow of the water in said river, and to have it come to their manufactories in its natural purity. And they allege that the respondents during the past six years have severally owned and operated large saw mills, cutting shingles, clapboards and other manufacturing machine and planing mills, and shovel-handle mills, situated above the complainants on said river, between and including Skowhegan and Fairfield, which they are respectively and separately operating, by means of which the refuse material, saw-dust, edgings, shavings, refuse wood and other debris arising therefrom are discharged therefrom into said river, and vast quantities are carried by the current down the river, and before reaching the complainants' premises it commingles into one indistinguishable mass, and thus uniting, flows along said river into their ponds, race-ways, racks and wheels, filling the same, and thereby stopping the wheels and retarding and preventing the running and operating of their manufactories, whereby they lose the benefit, advantage and profits of the same, rendering it necessary to expend large sums of money in removing this waste and debris, causing great damage, constituting a great nuisance, which is rapidly increasing and becoming more intolerable, which operations are still continued and will be continued, and that a destruction of complainants' profits and irreparable injury will result unless the respondents are restrained by injunction; that each respondent is independently working his own mill without any conspiracy or preconcert of understanding or action with the others, and it is impossible to distinguish what particular share of damage each has inflicted or will inflict, but that each has contributed and is now contributing to constitute the nuisance, making an unreasonable use of the water of said river, destroying its value, illegally interrupting the complainants in its use, and rendering it unfit for manufacturing purposes; and that they have no remedy except in equity.

The prayer is for a perpetual injunction, restraining the respondents from depositing waste, enumerated in the bill, in said river.

The answer substantially sets forth admission of title and possession of the premises of the parties as alleged, and claiming that the respondents were severally operating such mills, manufactories and machinery, as alleged, which are used to manufacture lumber owned by most of the respondents, and cut near the head-waters of the Kennebec; that most of the respondents own large tracts of timber land situate in the northern part of the State, and have invested in said lumbering business large amounts of money, and employ annually a large number of men in cutting, hauling, driving, booming and sawing said lumber, their business having continued for more than thirty years, and having become of very large proportions, furnishing employment for a large proportion of the laboring men living on Kennebec river; that said mills and manufactories were all located where they now are more than thirty years ago, having been operated during all that period in the same places and manner as now, and that there have always during said time been thrown into said river whatever refuse materials the occupiers of said mills saw fit, consisting of slabs, edgings, shavings and all other refuse materials of various kinds evolved from said operations, but with much less quantity during the past six years, and only so much, as with proper care and caution on the part of complainants to protect their manufactories, would do injury to them, and that the respond

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