Imágenes de páginas

tary Pond, and allege that at times the defendant, if these rigbts were varied by any adverse user vrongfully keeps back the water, and at other or prescription, on one side or the other. times wrongfully sends down too much; and The first deed in the order of time was a conthey pray for an injunction, and also for a de- veyance which included the fourth privilege, cree establishing the respective rights of the now owned by the plaintiff Rhodes. This was parties in Singletary Pond, and in Bill Brook, a deed from Caleb Burbank to Benedict and and also for damages.

Braman, dated January 3, 1825, of a desThe cases come before us upon a master's cribed parcel of ladd on Mill Brook, with a report and numerous exceptions taken by the right to erect mills al such place on the premises defendant thereto, with such portions of the as to commard a certaio defined and limited evidence as the parties decmed imporlant. We bead and fall of water; also with the right to shall not be able to do much more than to de- the grantees, their beirs and assigns (when clare the general rights of the parties, upon the necessary to drive their works), to hoist the cases as presented, leaving them to make before gate at said Crooked Poni! [wbich was another a single justice such furtber applicaticn for the name for Singletary Pond) so as to let as much settlement of the decrees, or otherwise, as may water run as shall be equivalent to carrying be necessary.

two engines in the grantor's paper mill, when Many things heretofore controverted may the grantor does not suffer so much to pass at now be brictly disposed of as conceded, or as im- bis paper mill; but wben the grantor, his beirs material, io ibe view we take of the pripcipal or assigns permit that quantity to pass the paquestions respecting which the parties are at is- per mill, the grantees, their beirs and assigns

It may now be assumed that Caleb Bur: are not to meddle with said gate or draw any bank was the owner of all the mill-sites and more water, nor are they to draw said quantity privileges in 1825, when he began to make con at any time except from six of the clock in the veyances, together with all the right wbich forenoon to six in the afternoon of eacb work. anybody had, by means of a dam, gate, etc., ing day, and the grantees, their beirs and asat ibe outlet, to regulate and control the flow signs are to be at ibeir just proportion of the of water from the pond. This is not now con expense of maintaining the gate, fume, dam, troverted by either party. The upper site bad etc., at Crooked Pood, and of making improve upon it a paper mill operated by Burbank. medts upon the same when necessary for the There has been some question wbich of the two common benefit. outlets of the pood was the original one; but The second deed in the order of time was a as boib ontlets come together before passing couveyance which included the seventh privithe first privilege, it is not material to deter- lege, which is also now owned by Rhodes. mine wbib was the original one. It is also This was a decd from Burbank to Timothy H. now admitted that the foreclosure of the mort. Longley, dated_May 1, 1825, of a described gage from Burbank to Waldo, wbich is the parcel on Mill Brook, with a certain right of foundation of the defendant's title, was valid. Howing the land above: “I also give and

It will be convenient to consider, in the first grant to the said Longley, his heirs and assigns, place, what rights the parties respectively ac- the privilege, when it may be necessary for the quired under their deeds; and afterwards to see purpose of keeping in operation mills which


The upper owner cannot vary the flow of the unreasunable and should be enjoined. Mason V. stream so as to cause injury to the lower owner by Hoyle, 6 New Eng. Rep. 6:29, 56 Conn. 215. any alteration in the conformation of his land, as But he bas the right to stop the natural flow long by removing a ledge of rock. Grant v. Kuglar, 3 enougb to fill up the pond or reservoir created by L. R. A. 608, 81 Ga. 637.

his dam, and keep it full for the use of bis mill; and A riparian owner may grant a part of his estate, will be liable to the lower owner only when the use pot abutting on the stream, and, as appurtenant and detention of the water is unreasonable. Cald. thereto, a right to druw water from the stream well v. Sanderson, 69 Wis. 52. through his remaining land; and for any diversion So long as his dam stands, he must vent the waof the natural flow of the stream disturbing such ters for mill owners below, so that each shall bave right, the grantee may maintain an action. St. the natural flow of tbe stream, except so far as the Anthony F:Jls Water Power Co. v. Minneapolis flow is modified by successive riparian proprietors. (Brinn. 43 N. W. Rep. 56.

Stevens v. Kelley (Me.) 5 New Eng. Rep. 871. But he cannot authorize, as against a lower pro- One owning a suitable place for a mill site cannot prietor, a company to take water from the streamn, be deprived of it because someone else has wrongto be conducted to a distance and gold. Heilbron fully interfered with the stream above him, unless V. Fowler Switch Canal Co. 75 Cal. 4:26.

the interference has continued for such length of The riparian owner on a non-tidal navigable time as to bar a suit or indicate acquiescence. stream has all the rights of a riparian owner, not Koopman v. Blodgett, 14 West. Rep. 909, 70 Mich. 610. mucousisteut with the public easement. Ibid.

A lower proprietor may set back the water in its

natural state to the boundary of the upper proprie Upper and lower mill owners.

tor, but be cannot by a dam or log jamg go as to The owner or occupant of a water-power may impede the running of his mills. Richards v. Peters, lawfully pass through his dam the entire volume 14 West. Rep. 6:28, 70 Mich. 286. of water naturally fiowing in the stream, but must An upper proprietur canuot, merely because at not increase such volume to the injury of adjoin-times the lower proprietor partially obstructs the ing lands. Boyington v. Squires, 71 Wis. 276. operation of his mills, entirely abandon their use,

Where an upper mill owner detains water in his and claim damages therefor, unless the obstruction reservoir long enough to operate his mill for five renders their operation impossible with profit. Ibid. hours in dry seasons, which occur for three months Riparian rights generally. See notes to Huines v. of the year, and thereby causes lower mills to lie Hall (Or.) 3 L. R. a. 611; Fulmer v. Williams (Pad idle for five days at a tiine, such use of the water is 'I L R. A. 004.

the grantee may have upon the premises, of grants of water rights in said deeds of the raising the gate of the grantor, which is sit- plaintiffs' and defendant's privileges, in 1825 ualed in the great canal, so called, at the out, and thereafter, as above recited, bad adapted let of the pon I known by the name of Crooked his paper mill, as a water mill, to the capacity Pond, so as to let so much water run as shall of the stream, so regulated in its flow from be equivalent to carrying two engines in the Singletary Pond as a reservoir, as to produce granior's paper mill by means of a breast-wheel, a constant and uniform volume of water dur. whenever the grautor does not suffer so much ing each working day of the year, and not to pass to the works which shall be erected upon being tben familiar with the use of the term the premises: but when the grantor, his beirs ' borse power,' as the measure of motive pow. or assigns shall permit so much water to puss er in the operation of mills, he adopted the reto tbe premises aforesaid, the grantee, bis beirs quirements of bis paper mills, as then run, to or assigns are not to meddle with said gate, nor wit, ‘two paper engines’ and the machinery draw any more water, nor are they to draw then necessarily used therewith in making said quantity at any time except from six paper, as the measure of the rights of the granto'clock in the morning to six o'clock in the even- ees, their heirs and assigns, in their respective ing of each working day, and the grantee, his grants, as aforesaid, from lim, in the waters of beirs or assigns are to be at their joint propor- said reservoir and stream therefrom, retairing tion of the expense of maintaining the gate, for the owner of the upper privilege the care fume, dam, etc., at Crooked Pond, and of and inanagement of the reservoir gate, subject making improvements upon the same, whed to the rights of the owners below, under the necessary for the common benefit."

grants, to boist said gate when necessary to Tie third deed in the order of time was a con- give a regular and uniform flow of said stream veyance wbich included the second privilege, in quantity or volume, so measured by the Dow owned by the plaintiff Whitney. This use and requirements of said påper mill-all was a dred from Burbank to Hervey Waters, owners of privileges on said stream to condated September 1, 1828, of three lots, with a tribute equally in the expense of maintaiving certain right of flowing the land above. suid reservoir for their common bepetit.” “Furthermore, if the said Burbank, bis beirs Two questions arise upon this finding: (1) or assigns shall neglect to draw water from whether, assuming the facts to be as thus Singletary Pond suficient to carry two engines, stated, the language of the deeds can be so as now runring in the granior's mill from five streicbed as to give to the several grantees a A. M. to seven P. M. on each working day, right to enforce such a regulation of the water said Waters, bis heirs or assigos shall bave a as to produce a const int and uniform volume lawful right to draw so much water, at any of water during each working day of the year; time so neglected by the grantor or bis assigns, and (2) whether the evidence warrants a findand no more, and said Waters, bis heirs or as ing that such was the intention of the grantor signs shall be at equal expense in erecting, in giving the deeds. We are unable tu agree making or repairing the dam, tlume or gates wilh the finding of the master in either parat Singietary Pool with the otber owner of ticular. privileges from said pond."

The language of the deeris does not permit The fourth deed in the order of time was a the construction put upon tbem by the master, mortgage, wbich included the third mill-sile, It is of no consequence bow Burbank operated dow owned by the plaintiff Lapham. This bis own mill or managed or regulated ibc wamortgage was given by Burbank to Stephen ter for bis own convenience and benefit. What Salisbury, dated March 23, 1829, and included be conveyed to these grantees was toe ordinary various other purcels of land besides the mill. right of riparian owners, except that they were site, but it contained no specific grant of rights only entitled to have a certain specified and of waier in the pond or stream. This mort- limited quantity of water sent down the stream gage was duly foreclosed.

during certaio hours of every working day. If The titles under the above deeds all came by that quantity should come, it was expressly mesne conveyance to the several pluuint fis. stipulated in the first two deeds that the grant

The title of the defendant is derived from ees should not meddle with the gate, or draw Burbank, through a mortgage given by him to any more water; wbile in the third deed it was Sarah Waldo, daled April 16, 1829, of various specified that if the grantor should neglect to parcels of land, oue of wbich included the first draw that quantity, the grantees might draw or upper privilege, situated "immediately be so much, and no more. In any event their low the ou:let of Crooked Pond, so called, with right was expressly limited to that quaotity of the mills and privileges thereon and ibereto be-water, which in each deed was describe'i as longing." This mortgage was duly foreclosed, being what would be sufficient to carry or possession for breach of condition having been equivalent to carryiag two engines in the given in 1813.

grantor's mill, for so many hours a day, the In order to determine what was tbe extent of number of bours being greater in the last deed; the rights granted by the first three of the deeds and thus in respect io the quantity of water above mentioned, it is, of course, proper to which they were entitled to have flow in the read the deeds in the light of the facts which stream, their right was not quite that of ordiexisted and were known to both parties at the nary riparian owners. There is not in either time when the deeds were given; and having deed anytbing giving to the granice a right to done this, the extent of the grant must depend bave the water belu back for his benefit. The upon ibe meaning of the word used.

only provision ibat looks at all like an underApparently having this rule in mind, the standing between the parties that the water master bas made a finding as follows: “I sbould be beld back for the benetit of the grantfind that Caleb Burbank, when be made these ees is that which subjects the grantees to a

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part of the expense of maintaining the dam, and agreed that if at any time he should not flume and gate at the outlet of the pond. 11 | be sending down enough water to carry the there were any other words going to indicate specified portion of his machinery, the grantees such a right on their part, this provision would might come up and raise bis gate and draw certainly lend support to that construction. That quantity of water, and he bound them to But this provision of itself alone by no means bear a proportion of the expense of maintaincontains so much. The accumulation of wa ing the gate, fume and dam, not of managing ter in Singletary Pond by means of a dam i them. There is no occasion for inferring that would naturally and almost necessarily be of the grantor intended to grant any greater right some benefit to the various mill owners on the in respect to the use of the water than what is stream. The three deeds all include a recog. according to the plain and natural meaning of pition that the grantor in the first instance was tbe words used. to have the care of the gate. The matter that But since a riparian proprietor has a right to was stipulated for was the quantity of water insist ibat the water sball not be unreasonably that should be sent down; not the duty withheld or let down by an owner above, ap of the grantor in bolding back water. It is owner of a stream at the outlet of a great pond, possible that if the present methods of using who by digging out the cbannel and erecting water bad leen foreseen the parties migbt have a dam at the edge of the pond can bold back stipulated for baving the water beld back, as all the water or quickly draw it dowp nearly to well as for sending it down; but they did not do low water mark, has no right by viriue of his

Even if it could be made to appear that position unreasonably to interfere with the they intended to do so, we are unable to find natural flow of the stream, so as to give the in the words which they used anyibing which riparian proprietors below a great deal more imposes tbat duty upon the grantor.

than the usual quantity of water during a part But, moreover, the evidence is pot sufficient, of the year, and little or none during the reIn our opinion, to warrant a finding that the mainder of the year. While he is not obliged grantor so intended, or that, in the words of 10 hold back ibe water for the benefit of the the master's report, he "adopted the require owners below, be cannot lawfully let it down ment of his paper mill, as then run, with two in such a way as to leave none for a long time paper engines, : nd the machinery ihen neces- afterwards to maintain the stream in its usual sarily used there with in making naper, as the condition. measure of the rights of the grantees,” both as

Three of the deeds above mentioned recog. to letting down and holding back water. The dize the existence of a dam, fume and gates at paper engines, which, as we understand it, the outlet of the pood by which the discharge were machines for beating up pulp, were op of water is to be regulated, and they give to erated by water coming through a separate the grantees a right to raise the gate and let aperture and to a separate wheel, which did down the stipulated quantity of water whennot carry other macbinery. We cannot ac- ever the grantor does not suffer so much to cept the conclusion that when the grantor pass at that point. While we bold that these specified two paper engines he meant to in provisions do not require the grantor to main. clude all the other machinery in bis paper tain'tbe dam and gate and regulate the flow of mill. Nor are we able to find any sufficient water for the grantees and their successors, evidence that he intended to be bound for all' por limit bis right reasonably to use the water, time to regulate the water for the benefit of even though the quantity used may exceed the grantees as be was then regulating it for that required by them, and may leave in the bis own benefit. If such bad been the inten- pond too little to supply the amount mentioned tion, it would most likely have been expressly in the deeds, it is at the same time manifest stated. The grantees might well expect in the that he cannot under these contracts unreasonnatural course of things to get a benefit from ably let down the water for his own convethe maintenance of the dam and gate; not vienre, and thereby redder nugatory tbe rightof pecessarily by baving the water held bark and bis grantces to open the gates and oblain water delivered wiib reference to tbeir special con- for their mills. If be assumes for bis own venience, but because the water would be so purposes to regulate the discharge of water accumulated that a less proportion would run from the pond, he must do it with a reason. to waste. In the absence of any stipulation able regard to the rights of the owners below, or acquired right to the contrary, the owner of having reference to the size and dature of the an upper privilege may make a reasonable use stream, and the uses to which it is adapted. of the water and obstruct and accumulate it in Clamp v. llerrick, supra. a reasonable way for the benefit of his own The plaintiffs introduced in evidence a deed mill, whatever may be the effect upon the from Caleb Burbank to Goddard and Mills, owners below. Springfield v. Harris, 4 Allen, dated September 12, 1833, of the upper privi. 494: Merrifield v. Worcester, 110 Mass. 216, 219. lege; granting "also a right to draw water from

But be must not withhold or let down the Singletary Pond, so called, sufficient to carry water in an unreasonable manner. Clapp v. two engines in the paper mill as now used, or Herrick, 129 Mass. 292.

all water that naturally runs in the stream 10And the grantee of a lower privilege gets nogether with all privileges." right to the use of a reservoir owned by the The plaintiff's coniend that, although the grantor, unless it is so specified in the deed, title conveyed by tbis deed bas been cut off by even although necessary for the beneficial use the foreclosure of the Waldo mortgage, yet this of his mill. Bruce v. Yale, 4 Allen, 303. deed may be referred to in aid of the construcThe graptor had a going mill

, with certain tion to be given to the deeds under wbich ibey machinery. As a measure of power granted, claim title, and that it shows that the grantor be selected a certain portion of ihat macbinery considered the quantity of water which was sufficient to carry the two engines as equiva- The defendant, as the owner of the upper lent to all the water that naturally ran in the privilege, and of the dam, tlume and gate at ibe stream. For some purposes, no doubt, the re- outlet of the pond. acquired by the conveyance citals in ancient deeds are competent evidence, the right to control the gate and manage and as, for example, to show the position of a regulate the flow of the water, except that it natural boundary (Drury v. Midland R. Co. must not thereby interfere with the rights of 127 Mass. 571, 581); or to show pedigree. 1 the owners below. To Lapham, the detendant Greenl. Ev. § 104.

was bound to send the whole natural flow of Tbis doctrine, however, does not extend so the stream, subject to such reasonable obstrucfar as to allow the estate granted in a prior tions and accumulations and prior uses as might deed to be expanded by recitals or statements properly be made for the defendant's own beneof the grantor in a later deed, to the injury of it. To the otber plaintiffs, the defendant was an intervening title. After making the mort- bound to send down the quantity of water gage to Waldo in 1889, the graptor could not called for by their several deeds, without refimpair the rights tbereby conveyed by state erence to the convenience of operating its own ments in a subsequent deed, or otherwise, to mills; though this duty would probably be susthe effect that by grants made prior thereto be pended in case a temporary stoppage sbould bad intended to convey more than those grants become necessary for repairs, or other emerof themselves would include. Moreover, it is gency, outside of the usual course of the operaat least open to question whether the truetion of the mill. Hankey v. Clark, 110 Ma:S. meaning of the words in the deed to Goddard 262; Gould v. Boston Duck Co. 13 Gray, 442; and Mills is not that Burbank thereby grants Pitts v. Lancaster Mills, 13 Met. 156; Drake v. the right to draw water sufficient, to carry the Hamilton Woolen Co. 99 Mass. 580. two engines, in any event, or all the water that Having reached these conclusions as to the naturally runs in the stream in case such rights of the respective parties under their natural flow should be greater than would be deeds, it is further to be considered if these sufficient for that purpose.

rights have been varied by any adverse user We are therefore of the opinion that the or prescription, on one side or the otber. water rights granted by the first three deeds in The master baving found that the grantees the order of time were the ordinary rights of in the first three deeds in the order of time, by riparian owners, except that the right of each tbe true cons ruction of their grants, were grantee to draw water was limited to a certain entitled to bave the flow of water regulated quantity during the specified hours of each for their benefit, did not find that they had working day, and that the grantor bad po right gained any right by prescription, nor is it conto hold back the water so that less than that iended in the argument that either of the plain. limited quantity would flow down. And if be tiffs bas gained in this manver any greater did so the grantees might themselves raise the right thap bis deed conveyed. Nor do we see gate of the outiet of the pond and let down any evidence to warrant such a claim. But the water in that quantity; but that the grantees defendant earnestly contends that it had gained acquired thereby no right to have the water in a right by prescription to manage ibe flow of the pond beld back for their benefit.

water from the pond for its own benetit, in the The plaintiff Lapham, the owner of the manner in which it has of late years been acthiri privilege, derives his title under a mort customed to do; that is, by retarding the natgage wbich made no special mention of water ural flow at times, and at other times letting rights, and therefore the grantee took, as dowo more than he natural dow, as suited its parian proprietor, a right to tbe whole natural own advantage. The master bas found to the How of ibe stream, subject to such reasonable contrary, and an examination of the evidence use of the water by upper owners as the com- fails to satisfy us that this claim of right on mon law allows. Tourlellot v. Phelps, 4 Gray, the part of the defendant is made out. The 870.

importance of clear evidence to sustain a claim This right, as bas already been stated, does of ibis description was remarked upon by Juilge not include the right to have the water held Story, in Tyler v. Wilkinson, 4 Mason, 347, back for bis benefit by means of the reservoir 404. and dam above, which the owner of the upper It appears to us that the acts of the defend. privilege may have a right of using reasonably ant in this direction have been gradual, and and properly for bis own benefit; but it does that the right now contended for has never include the rigbt to a larger quantity of water been openly asserted till it was done by Redthan the owners of the other privileges had, ding, the defendant's superintendent, within a provided the natural flow of the stream would few years. The defendant bas pot suggested any furnish it.

particular tiine or manner in which it or its The master finds that the plaintiffs have lost predecessors in title acquired by purchase, by ponuser and abandonment the right to have grant or release any additional right to that the water come down in excess of ten hours for conveyed by the mortgage to Waldo. In 1836, each working day. The defendant, however, when the depositions in perpetuam were taken, concedes in its brief that there is no evidence to tbere was no intimation of such a claim. In support his finding, and we discover none. 1861 and 1864, when the owners of lower Moreover, the rights of riparian owners are not privileges assert that they contributed money lost in this way. Johnson v. Jordan, 2 Met. towards the expense of repairs, as Ibey were 234, 239.

bound to do under their deeds, we tind no in. Lapham was merely a riparian owner, and timation of any claim by the owner of the upthe oiher plaintiffs bad the rights of riparian per privilege ibat their rights under their deeds owners, subject to the qualifications contained bad been impaired. In short, looking at the in their respective deeds.

| testimony which is reported, all of wbich has been examined with reference to this point, I behalf of the defendant in recent years a larger though it is not necessary to refer to it here iu autbority tban it rightfully possesses to control detail, we are satisfied with ibe finding of the tbe flow of the water. The defendant's master that the defendant has not acquired the answers contain a similar claim. The plainrigbt by prescription to control the reservoir tiffs, therefore, are entitled to mainlain their and the flow of the stream therefrom; and there- bills for Jelief, but the scbeme proposed by the fore the rights of the defendant must depend master for regulating and apporrioping the flow upon the deeds.

of the water of the stream will bave to be given It appears by the evidence that Redding, the up, and bis various findings which are incondefendant's superintendent, wbile actiog with sistent with the conclusions above expressed in the scope of his auibority, bas practically must be disregarded. denied the plaintiffs' rights, and exercised in Ordered accordingly.


J. H. HILL and Wife, Appts., ability, the busband may maintain an action 0.

for the loss of service and also for any incident B. B. KIMBELL.

al loss or dainage (Cooley, Torts, p. 226); or

ibey may have a joint action. (.... Tex.....)

Cooleg. Torts, p. 227; Barnes v. Martin, 15

Wis. 240; Matteson v. New York Cent. R. Co. 35 1. A miscarriage and serious impair U. 8. 11 (24 L. ed. 48); Katanaugh v.

N. Y. 487; Allantic & P. R. Co. v. Ilopkins, 94 ment of the health of a woman occupying

Janesleused premises, caused by fright produced by a ville. 24 Wis. 618; Smith v. St. Joseph, 55 Mo. boisterous and violent assault upon some negroes 456; McKinncy v. Western Stage Co. 4 Iowa, on the premises, and in her presence, by the land- 420; Morory v. Chaney, 43 Iowa, 609; Berger v. lord, who knew her pregnant condition, gives a Jaco!8, 21 Mich. 215. cause of action against bim.

Injury 10 the wife's feelings is an element of 2. The word "trespass” in the Statute al actual damage.

lowing an action for trespass to be brought in Western Union Teleg. Co. v. Cooper, 71 Tex. the county where it was committed, or where the 507. defendunt bas his domicil, includes actions of To maintain an action on the case it is not trespass on the case.

necessary that it should be supported by in

stances or precedents; it is sufficient if the case (February 14, 1800.)

in question be covered by principle.

Wait, Act. and Def. p. 99.

The law implies that the culpable party must the Districi Court for Freestune County bave intended natural consequences of that sustaining an exception to the petition for the wbich he did or neglected to do, and it bolds reason that defendant was not sued in the him accountable accordingly. county of his residence, in an action to recover Cooley. Torts, p. 84, citing James v. Camp damages for injuries froin fright caused by de-, bell, 5 Car. & P. 372. fendant's negligent acts. Reversed.

An action lies for an injury caused by a The case sulliciently appears in the opinion. fright, Mr. J. D. Childs, for appellants:

Canning v. Williamatnion, 1 Cush. 451. See For an injury to the wife, either intention. also Gall:iglier v. Boroie, 63 Tex. 26.5; Stutz v. ally or negligently caused, which deprives ber Chicago & N. W. R. Co. 73 Wis. 147, 9 Ain. St. of the ability to perform services or lessens that Rep. 769.

A PEPE Disbyc plaintiffs from resude ment

Note.-Trespass upon personal rights. under the general issue, to have such effect as they Whenever there is a wrong there is a remcdy.' merit, in determining the verdict, by mitigation or Bootb v. Starr, 5 Day, 119; Hawley v. Bottsford, 27 otherwise. Sutherland v. lagails, 63 Mich. 620, 6 Conn. 80; Bacon v. Thorp, 27 Conn. 251; Davis v. West. Rep. 389 Van Sands, 45 Conn. 600.

So in an action of trespass for forcibly invading a Actions of trespass are transitory, except for in- plantation and carrying off so'ne slaves and frightJury to real property. McKenna v. Fisk, 42 U. S. 1 eniny away others, it was held that evidence of How. 241 (11 L. ed. 117).

consequential damages to the wood and corn of The distinction between trespass and trespass on plaintiff was admissible. McAfee v. Crotford, 54 U. the case is abolished by Rev. Stat., chap. 82, 8 15; and S. 13 How. 447 (14 L. ed. 217), a declaration in either form is good. Holmes v. So where a landlord unlawfully evicted a tenant Corthell, 5 New Eng. Rep. 794, 80 Me. 31.

Moyer v. Gordon, 12 West. Rep. 145, 113 Ind. 282. Where one in violation of the law does an act A parts will be entitled to as much damages for which, in its consequences, is injurious to another, any wrong or injury quietly endured as if he viohe is liabie, irrespective of negligence. Van Nor- lently resisted. Southero Kansus R. Co. v. Hinsden v. Robinson, 45 Hun, 567.

dale, 38 Kan. 807. An injury can be voluntary only when the party So it has been held that in a suit by husband and ts aware of the danger to which another is subject, wile for damages for injuries inflicted upou the and, realizing the inevitable result, performs the wife by an indecent Ansault, full compensatory act which iuflicts injury. Stone v. Dry Dock, damages may be awarded within the amouot E. B. & B. R, Co. 46 Hun, 184.

claimed. Wolf v. Trinkle, 103 Ind. 355, 1 West. Rep In an action of trespass for personal violence, all 497. Compare McClelland v. Patterson (Pa.) 5 Cente the circumstances of the transaction may be shown, 'Rep. 734

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