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E. 711; Ainsworth v. Lakin, 180 Mass. 397, Min. Rep. 142; Baird v. Williamson, 15 C. 57 L.R.A. 132, 91 Am. St. Rep. 314, 62 N. B. N. S. 376, 33 L. J. C. P. N. S. 101, 10 E. 746; Fletcher v. Smith, L. R. 2 App. Cas. Jur. N. S. 152, 9 L. T. N. S. 412, 12 Week. 781, 37 L. T. N. S. 367, 47 L. J. Exch. N. Rep. 150, 4 Mor. Min. Rep. 368. S. 4, 26 Week. Rep. 83, 5 Mor. Min. Rep. 78. Compensation is to be given only for such

The finding by the jury that the work “injuries” as would have been the basis of on the trench was not done negligently does an action at common law. not affect the plaintiff's case.

Caledonian R. Co. v. Walker, L. R. 7 App. Gorham v. Gross, 125 Mass. 232, 28 Am. Cas. 259, 46 L. T. N. S. 826, 30 Week. Rep. Rep. 224; Ball v. Nye, 99 Mass. 582, 97 Am. 569, 46 J. P. 676; Caledonian R. Co. v. Dec. 56; Fitzpatrick v. Welch, 174 Mass. Ogilvy, 2 Macq. H. L. Cas. 229; Pennsyl486, 48 L.R.A. 278, 55 N. E. 178; Cabot v. vania R. Co. v. Marchant, 119 Pa. 541, 4 Kingman, 166 Mass. 403, 33 L.R.A, 45, 44 Am. St. Rep. 659, 13 Atl. 690; Brittle Silver N. E. 344; Perry v. Worcester, 6 Gray, 544, Co. v. Rust, 10 Colo. App. 463, 51 Pac. 528; 66 Am. Dec. 431.

Smith v. Wilcox, 47 Vt. 537; Shrunk v. Mr. F. Delano Putnam, for defendant: Schuylkill Nav. Co. 14 Serg. & R. 71.

The evidence does not show that the plaintiff has any cause of action at common De Courcy, J., delivered the opinion of law.

the court: Lincoln v. Com. 164 Mass. 1, 41 N. E. 112; The easement in an existing highway perCheney v. Barker, 198 Mass. 356, 16 L.R.A. mits public uses on and beneath the surface (N.S.) 436, 84 N. E. 492; Pierce v. Drew, of the way of a far-reaching and ever in136 Mass. 75, 49 Am. Rep. 7.

creasing character. Pipes, sewers, and subUnless negligence on the part of the de- ways impose no additional servitude upon fendant is shown, it is not liable.

the land in the public street for which the Greenleaf v. Francis, 18 Pick. 117; Davis owner of the fee can claim damages. Cheney v. Spaulding, 157 Mass. 431, 19 L.R.A. 102, v. Barker, 198 Mass. 356, 16 L.R.A.(N.S.) 32 N. E. 650; Acton v. Blundell, 12 Mees. 436, 84 N. E. 492; Sears v. Crocker, 184 & W. 324, 13 L. J. Exch. N. S. 289, 15 Mor. Mass. 586, 100 Am. St. Rep. 577, 69 N. E. Min. Rep. 168; Chasemore v. Richards, 7 H. 327; Bishop v. North Adams Fire Dist. 167 L. Cas. 349, 29 L. J. Exch. N. S. 81, 5 Jur. Mass. 364, 45 N. E. 925; Lincoln v. Com. N. S. 873, 7 Week. Rep. 685, 1 Eng. Rul. 164 Mass. 1, 41 N. E. 112. As the approCas. 729; Smith v. Kenrick, 7 C. B. 515, 18 priation of the space below the surface is L. J. C. P. N. S. 172, 13 Jur. 362, 6 Mor. ) not an invasion of his common-law rights, into his neighbor's soil, and thus injure his, water, or anything else, which would not neighbor's well and cellar.

in the natural condition of the land be colA waterworks company was held guilty lected there, ought to keep it at his own of a trespass in Odell v. Nyack Waterworks peril, and that if it escape, he is liable for Co. 91 Hun, 283, 36 N. Y. Supp. 206, where, the consequences. by closing the overflow pipe in its reser- So, where a defendant landowner allowed voir, it caused the waters to overflow a well rain water to accumulate in an excavation on its premises, and in that manner unlaw- on his lot, he was held liable in Crommelin fully and wrongfully forced waters through v. Coxe, 30 Ala. 318, 68 Am. Dec. 120, for a subterranean course into an adjoining damages caused by the water percolating landowner's well, causing the wall and arch into an adjoining lot owner's cellar; and thereof to loosen and cave, injuring plain- he was liable notwithstanding the excavatiff's premises. “While the defendant has tion was there when he purchased the lot the legal right to maintain a reservoir upon from one who owned both lots, and he sim. its premises, it was bound to so use and ply permitted the property to remain in the guard the same that it would not become state in which it was when he purchased.

source of annoyance or damage to the Generally, as to connection with, or participlaintiff and others.”

pation in, nuisance, essential to render So, where one dug out a cellar and rain one responsible therefor, see note to Adler v. water collected there and percolated into Pruitt, 32 L.R.A. (N.S.) 889; and as to nethe cellar of an adjoining landowner, he cessity of notice to render owner of premises was held liable for the damages, in Snow v. liable for continuing a nuisance created by Whitehead, 53 L. J. Ch. N. S. 885, L. R. 27 predecessor, see notes in 27 L.R.A. (N.S.) Ch. Div. 588, 51 L. T. N. S. 253, 33 Week. 164, and 50 L.R.A.(N.S.) 929. Rep. 128. This case comes within the de. So, a recovery was allowed in Nelson v. cision of Rylands v. Fletcher, L. R. 3 H. L. Godfrey, 12 Ill. 20, for damages resulting 330, 37 L. J. Exch. N. S. 161, 19 L. T. N. S. to plaintiff by reason of an excavation for a 220, 6 Mor. Min. Rep. 129, 1 Eng. Rul. Cas. coal cellar made by defendant in the side235, affirming L. R. 1 Exch. 265, 12 Jur. N. walk in front of his premises, through S. 603, 14 Week. Rep. 799, discussed at which the water from the gutter of the length on page 541 of note in 15 L.R.A. street passed into defendant's cellar, and (N.S.) supra, which turns on the principle then through several other cellars into that that anyone who collects upon his own land of the plaintiff, and did the damage com



the abutter cannot maintain an action of Woodbury v. Beverly, 153 Mass. 245, 26 N. tort for an injury caused thereby, unless E. 851. Under the grade crossing act (Rev. the construction work is done negligently Laws, chap. 111, § 153; Stat. 1906, chap. or improperly. A common instance of this 463, § 37), remedy is given for acts which is where the work necessarily causes sur. cause injury of a special and peculiar kind, face water to flow, or underground water to although they are not a violation of compercolate, upon the land of an abutter. Ken-mon-law rights. Hyde v. Fall River, 189 nison v. Beverly, 146 Mass. 467, 16 N. E. Mass. 439, 2 L.R.A.(N.S.) 269, 75 N. E. 953. 278; Barry v. Lowell, 8 Allen, 127, 85 Am. A town constructing a sewer in land taken Dec. 690; Flagg v. Worcester, 13 Gray, 601; for that purpose is liable under Rev. Laws, Holleran v. Boston, 176 Mass. 75, 57 N. E. chap. 49, § 2, for draining a well on land 220. And see “Ways and Waters in Massa- not adjoining the land taken, although at chusetts,” 28 Harvard L. Rev. 478. It is common law the owner of land lawfully not disputed here that the municipality duly may make excavations in it and thereby gave consent to the defendant to lay the drain his neighbor's well. Trowbridge v. gas pipes in Maple street, and that the loca- Brookline, 144 Mass. 139, 10 N. E. 796 ; tion of the trench was designated by the Davis v. Spaulding, 157 Mass. 431, 19 L.R.A. superintendent of streets under the terms of 102, 32 N. E. 650. And under the East the vote of the board of mayor and alder. Boston tunnel statute (Stat. 1894, chap.

The defendant was thereby author- 548, § 34, as amended by Stat. 1895, chap. ized to make use of the street under the 440, § 1), the owner of abutting land whose public right. Rev. Laws, chap. 110, § 76. cellar was flooded owing to the unauthorized Pierce v. Drew, 136 Mass. 75, 81, 49 Am. removal of a bulkhead was held entitled to Rep. 7; Lincoln v. Com. 164 Mass. 1, 10, compensation. Fifty Associates v. Boston, 41 N. E. 112.

201 Mass. 585, 88 N. E. 427. See also PeaOn the facts shown the defendant has body v. Boston, 220 Mass. 376, 107 N. E. violated no common-law right of the plain- 952. tiff. In many instances where there is no re- Rev. Laws, chap. 110, $ 76, which authorcovery at common law the legislature has izes gaslight companies to open the streets provided indemnity for injury suffered by for the purpose of laying pipes, with the abutters and others. Thus, compensation is consent in writing of the mayor and alderrecoverable under the highway statute for men, provides that “such consent shall not injury caused by surface water flowing upon affect the right or remedy to recover daman abutter's land by reason of raising the ages for an injury caused to persons or grade of a street. Rev. Laws, chap. 51, § 15. property by the acts of such corporations." plained of. The court said that, while a construct a drain on her own property or to

1 license thus to use a part of the public i some similar affirmative act, she was bound street may be inferred, it is on the condi- to do no more than a person of ordinary tion that the person doing so shall use prudence would have done. As to defendmore than ordinary care and expedition in ants' contention that they had a right to do the prosecution of the work. It is a fa. the acts complained of, by virtue of a resermiliar principle that when one enjoys a vation in a certain deed, and that by preprivilege as a matter of favor, in considera- scription they had the right to flood the tion that he alone can enjoy the benefit, land of plaintiff, it was a sufficient answer he is required to use extraordinary care in to say that they afforded affirmative dethe exercise of the privilege. In this case fenses, and were not therefor under cirbut for the favor extended to the defendant cuit court rule 7, admissible under the dethe plaintiff would not have sustained this fendants' plea of the general issue. loss. The defendant alone can reap a bene. It has been held, however, that where the fit, and he ought to be responsible for all waters used for purposes of irrigation on damages which might have been avoided a rice farm percolate through the inclosing by special vigilance and care.

levees, and in jure the crops on an adjoining The owners of a mill were held liable sugar plantation, notwithstanding the rice in Scott v. Longwell, 139 Mich. 12, 102 N. planter has exhausted all the usual and cusW. 230, 5 Ann. Cas. 679, where water from tomary modes to prevent the seepage and a mill race percolated through the banks protect his neighbor, the damage resulting into the cellar of an adjacent owner as a therefrom will be damnum absque in juria. consequence of scraping and refilling after Nagel v. Madere, McGloin (La.) 325. the race had been empty for a long time. And so it has been held that a plaintiff Imputing to defendants under the law, said has no legal cause of complaint against a the court, a knowledge and skill possessed defendant because water which gathers into by competent millwrights, it must be pre defendant's cellar passes by percolation into sumed that they knew that the water would plaintiff's cellar, where the injury results escape through the banks of the race, which from plaintiff's act in sinking his cellar had been so long empty, and they were deeper than that of defendant. bound to take precautions to prevent it. Spinks, 11 Ky. L. Rep. 954 (abstract). Even were it true that, to lessen the dam

J. D. C. ages, plaintiff was under an obligation to

Beck v.



We do not undertake to pass upon the ques- | rate as inserted by a typewriter in a printed tion whether this provision was designed to note blank, and placing a figure above it give the plaintiff a cause of action where with a pen, where the statute provides that none existed at common law, and to afford where there is a conflict between the writcompensation for damage necessarily caused ten and printed provisions in a contract,

the written ones must prevail, since the by work which was authorized by the stat-typewritten figures must be regarded as ute and was executed in a reasonably proper printed. The present action is one of tort

Same indorsee want of considerafor alleged negligence. The jury specially tion. found that the work on the trench was not 2. The defense of failure of consideration done negligently; hence no case of liability is not available under the negotiable in. at common law was made out, even assum- strument law against an indorsee of a negoing that an action of tort would lie for neg of his purchase he had notice of infirmity

tiable note, unless prior to or at the time ligent acts done in carrying out the pur- in the note, or knowledge of such facts poses of the statute. See Westcott v. Bos. that taking the instrument amounted to ton, 186 Mass. 540, 72 N. E. 89. We cannot bad faith. say that the judge was wrong in directing

(March 8, 1915.) a verdict for the defendant; and under the terms of the report, based on the stipula- RROR to the District Court for Sherition of the parties, the entry must be:


dan County to review a judgment in Judgment for the defendant.

plaintiff's favor in an action brought to recover the amount alleged to be due on a promissory note. Affirmed.

The facts are stated in the opinion. WYOMING SUPREME COURT.

Messrs. Burgess & Kutcher for plainACME COAL COMPANY et al., Plffs. in tiffs in error.

Mr. H. N, Gottlieb, for defendant in



error :

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NORTHRUP NATIONAL BANK OF IOLA, Alleged uncertainty in the amount of inKANSAS.

terest payable did not affect the character

of the instrument as a negotiable note. ( Wyo. 146 Pac. 593.)

2 Cyc. 142-144; 2 Am. & Eng. Enc. Law,

2d ed. p. 206 and notes; Busjahn v. McBills and notes typewritten figures Lean, 3 Ind. App. 281, 29 N. E. 494; Phil

- change by writing - conflict. 1. Uncertainty as to the rate of interest lips v. Crips, 108 Iowa, 605, 79 N. W. 373; in a note, so as to render it non-negotiable, Durant v. Murdock, 3 App. D. C. 114; is not created by drawing with a pen a

Thompson v. Hoagland, 65 Ill. 310; Cramer ring around the figures representing such Joder, 65 Ill. 314. Note. - Typewritten matter as written printed. Carroll v. Holmes, 19 Ill. App. or as printed matter.

564; Johnson County v. Bryson, 26 Mo.

App. 484; Franco-American Loan & Bldg. The precise question presented in ACME Asso. v. Joy, 61. Mo. App. 162; Keating v. Coal Co. v. NORTHRUP NAT. BANK, as to Lewis, 74 Mo. App. 226; Buckingham v. whether typewritten words or figures are Reid, 5 Idaho, 312, 48 Pac. 1069; Sunday to be deemed written or printed matter for v. Hagenbuch, 18 Pa. Co. Ct. 540 (typepurposes of the rule that written, shall pre written bill); National Bank v. Lovenberg, vail over printed, provisions in case of a 63 Tex. 506; State v. Oleson, 9 Wash. 186, conflict, does not seem to have been dis 37 Pac. 419. cussed elsewhere.

And there seems to be in Buffalo & St. Typewriting, however, is stated to be a M. R. Co. v. Philadelphia & E. R. Co. 174 substitute for and the equivalent of writ- Pa. 263, 34 Atl. 561, a recognition of the ing, in Deep River Nat. Bank's Appeal, 73 fact that typewriting is not printing, and Conn. 341, 47 Atl. 675, where a letter dic-; that in equity proceedings the one cannot tated to a stenographer and typewritten is be substituted for the other. held a suflicient compliance with that sec- In Sunday v. Hagenbuch, 18 Pa. Co. Ct. tion of the General Statutes providing that, 540, it is stated in the syllabus that under "in actions against the representatives of the act of June 18, 1895, P. L. 125, typedeceased persons, no acknowledgment or writing is given the same legal force, meanpromise shall be sufficient evidence of a ing, and effect as writing. new or continuing contract to take the case But typewritten notices are in State ex out of the statute of limitations, unless the rel. Coleman v. Oakland, 69 Kan. 784, 77 same be contained in some writing made or Pac. 694, held sufficient to meet the statusigned by the party to be charged thereby.” | tory requirement as to posting printed no

And it has been held that typewriting is tices of application to organize city of third not printing within the court rule requir- class.

J. D. C. ing abstracts of records and briefs to be

Testimony of defendant Craig was prop- The defendants contend that the note is erly stricken out.

not a negotiable instrument by reason of Bank of Leadville v. Allen, 6 Colo. 594; an uncertainty in the rate of interest it Foy v. Blackstone, 31 III. 538, 83 Am. Dec. bears appearing on its face, there being a 246; MacRitchie v. Johnson, 49 Kan. 321, conflict between the rate as inserted in the 30 Pac. 477; Violet v. Rose, 39 Neb. 660, i printed blank by the typewriter, and that 58 N. W. 216; Livingston v. Roberts, 18 with pen and ink. The rule of construction Fla. 70; Blair v. Buser, Wilson Super. Ct. provided by our statute (it being what is (Ind.) 333; Farmers' & M. Ins. Co. v. Dob- known as the uniform negotiable instruney, 62 Neb. 213, 97 Am. St. Rep. 624, 86 ment act) is, where there is a conflict beN. W. 1070; Nebraska Teleph. Co. v. Jones, tween the written and printed provisions of 60 Neb. 396, 83 N. W. 197, 8 Am. Neg. Rep. the instrument, the written provisions pre270; Wittenberg v. Mollyneaux, 60 Neb. vail. Comp. Stat. 1910, $ 3175, subdiv. 4. 583, 83 N. W. 842.

Had the figure “7” been printed in the

blank as it was printed on a printing press, Beard, J., delivered the opinion of the and the figure “g” written with pen and ink, court:

the rule of the statute would unquestionThis is an action on a promissory note ably apply. The question here is: Is that brought by the defendant in error against portion of this note which is typewritten to the plaintiffs in error. Trial was had to the be considered as printed, or as written? court, and judgment rendered in favor of When we consider what we conceive to be plaintiff below, and defendants bring error. the reason for the rule as laid down in the

The note was given by the Acme Coal statute, and the connection in which the Company, and indorsed by Ora Darnall and words "written” and “printed” are there A. K. Craig, and payable to the order of used, we think the question is not difficult the United States Iron Works Company. (of solution. The printed form or blank is and by said company indorsed to the bank. used for convenience, and is prepared in adThe note bears date November 9, 1912, is vance of the final agreement between the for $1,589.15, due ninety days after date, parties; and when a conflicting provision with interest from date. A blank printed is afterward inserted therein in writing, the form was used, and the blanks filled in on natural and reasonable presumption is that a typewriter, and in the blank space for the later and written provision expresses the rate of interest, after the printed word the true intent of the parties. The word "at,” the typewritten figures and words are "writing" is defined in the Century Dic. “7 per cent from date.” There is a circle tionary: "Specifically, distinguished drawn around the figure 7 with a pen and from printing, stamping, incision, etc., the ink, and above it is the figure 8, also made act or art of tracing graphic signs by hand with pen and ink. The defendants denied on paper, parchment, or any other material, the execution of the note, but averred that with a pen and ink, style, pencil, or any if they did execute it, was given in re other instrument.” newal of a former note dated August 3, And the word "print" is defined by the 1912, which was given for a part of the pur- same authority: “Specifically, to stamp by chase price of certain pit cars for use in direct pressure, as from the face of types, the coal company's mines; that said cars plates, or blocks covered with ink or pigwere purchased from the iron works com- ments; impress with transferred characters pany by the coal company under an agree- or delineations by the exercise of force, ment that they were to be of the same kind as with a press or some other mechanical and in all substantial respects like cars agency." formerly purchased by the coal company And “typewriting" is defined: The from the iron works company; alleged cer- process of printing letter by letter by the tain defects in the cars which could not be use of a typewriter.” When, as in this discovered by inspection, but which the case, it clearly appears from an inspection iron works company knew or should have of the instrument that the blank form used known, and that the cars were practically was “printed,” using that term in its comworthless. That the cars were delivered mon and ordinary sense, and the blanks during the year 1911 and fore part of the therein are filled in on a typewriter, and it year 1912.

That the plaintiff knew or then further appears that there is a conshould have known that said cars were de- Alict between a typewritten provision and fective and useless and worthless to the coal one afterward made with pen and ink, we company, and if it purchased the note in think the typewritten portion of the instrusuit it did not do so in good faith, but for ment must be considered as "printed” withthe purpose of defeating the coal company's the meaning of the statute. We do not claim for damages against the iron works wish, however, to be understood as holding company.

that in all cases and under all circum


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stances typewriting is to be construed as of defective title in the iron works comprinting; but that in the circumstances pany on the ground of false representations here presented it is to be so construed, and and fraud in procuring the note, the evithat the rule adopted by the statute ap- dence, including certain testimony stricken plies, and that the rate of interest in the out by the court on plaintiff's motion, is note is not uncertain, and that it is a nego insufficient to establish those allegations. tiable instrument. Nor have we overlooked The most that can be said of it is that it the further provisions of the statute tended to prove a breach of contract. It ($ 3349) with reference to the construc- was to the effect that the iron works comtion of words, viz., “In this chapter, un- pany agreed to furnish cars like those previless the context otherwise requires :

ously purchased by the coal company from 'Written' includes printed and 'writing' in- it, but failed to do so. There is an entire cludes print.”

lack of any evidence that the plaintiff had, To so construe those words in the case prior to or at the time it purchased the before us would render the rule prescribed note, any notice or knowledge of any deby § 3175 meaningless and of no force; fect or infirmity in the note, or knowledge and in our opinion the case comes within of such facts that in its action in taking the exception, "unless the context other the instrument amounted to bad faith; wise requires.”

which notice. or knowledge was necessary The defendants further alleged in their to let in the defense of failure of consideraamended answer (upon which the case was tion, breach of contract, or breach of imtried) that they relied upon the agreement plied warranty. Ireland v. Shore, 91 Kan. and representations of the iron works com- 326, 137 Pac. 926. The finding of the dispany that the cars were like the cars pur-trict court is general, but it must neceschased prior to 1911 and could be used for sarily have held the note to be negotiable, the purpose for which they were intended, and found that the defendants failed to esand it was by reason of said agreement and tablish fraud in the inception of the note, representations that the coal company was or notice of any infirmity or defect therein, induced to buy and did buy said cars. As to or bad faith on the part of plaintiff as those allegations, counsel for plaintiffs in holder of the note. error say in their brief: “By failure to We think the record sustains the judg. deny, the reply of defendant in error admits ment, and it accordingly is affirmed. the ninth paragraph of the answer,”that being the paragraph containing said Potter, Ch. J., and Scott, J., concur. allegations.

If a reply was necessary, the reply to the original answer denied the new matters set up in the answer; and we find in the record

ALABAMA SUPREME COURT. a written stipulation signed by the attor

BIRMINGHAM WATERWORKS COM neys for the respective parties and filed in

PANY, Appt., the court below, that the reply filed to the original answer should stand as the reply

MARY B. BROWN. to the amended answer. That point is not therefore well taken.

(- Ala.

67 So. 613.) The note being negotiable, the statute provides (8 3217): "Every holder

is Water company municipal supply deemed prima facie to be a holder in due special rates - validity. course; but when it is shown that the title A water company which has contracted of any person who has negotiated the in- with a municipal corporation to furnishi

water to its inhabitants at a flat maximum strument was defective, the burden is on the holder to prove that he or some person contract for meter rates with a particular

rate for dwellings cannot make a special under whom he claims acquired the title as householder, and even though it undertakes a holder in due course."

to do so, it may cut the supply off from his And by $ 3213, id.: “The title of a per- residence upon his refusal to pay the unison who negotiates an instrument is de- form flat rate. fective within the meaning of this chapter when he obtained the instrument or any

(Sayre, J., dissents.) signature thereto, by fraud, duress, or force

(December 17, 1914.) and fear, or other unlawful means, or for an illegal consideration, or when he nego- Note. - Right of water or light comtiates it in breach of faith, or under such pany to discriminate between concircumstances as amount to a fraud."

sumers as to rates. Assuming the allegations of the amended

This note is supplementary to the note answer to be sufficient to present the issue appended to State ex rel. Ferguson v. Bir

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