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E. 711; Ainsworth v. Lakin, 180 Mass. 397, 57 L.R.A. 132, 91 Am. St. Rep. 314, 62 N. E. 746; Fletcher v. Smith, L. R. 2 App. Cas. 781, 37 L. T. N. S. 367, 47 L. J. Exch. N. S. 4, 26 Week. Rep. 83, 5 Mor. Min. Rep. 78. The finding by the jury that the work on the trench was not done negligently does not affect the plaintiff's case.

Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 224; Ball v. Nye, 99 Mass. 582, 97 Am. Dec. 56; Fitzpatrick v. Welch, 174 Mass. 486, 48 L.R.A. 278, 55 N. E. 178; Cabot v. Kingman, 166 Mass. 403, 33 L.R.A. 45, 44 N. E. 344; Perry v. Worcester, 6 Gray, 544, 66 Am. Dec. 431.

Mr. F. Delano Putnam, for defendant: The evidence does not show that the plaintiff has any cause of action at common law.

Lincoln v. Com. 164 Mass. 1, 41 N. E. 112; Cheney v. Barker, 198 Mass. 356, 16 L.R.A. (N.S.) 436, 84 N. E. 492; Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7.

Min. Rep. 142; Baird v. Williamson, 15 C. B. N. S. 376, 33 L. J. C. P. N. S. 101, 10 Jur. N. S. 152, 9 L. T. N. S. 412, 12 Week. Rep. 150, 4 Mor. Min. Rep. 368.

Compensation is to be given only for such "injuries" as would have been the basis of an action at common law.

Caledonian R. Co. v. Walker, L. R. 7 App. Cas. 259, 46 L. T. N. S. 826, 30 Week. Rep. 569, 46 J. P. 676; Caledonian R. Co. v. Ogilvy, 2 Macq. H. L. Cas. 229; Pennsylvania R. Co. v. Marchant, 119 Pa. 541, 4 Am. St. Rep. 659, 13 Atl. 690; Brittle Silver Co. v. Rust, 10 Colo. App. 463, 51 Pac. 528; Smith v. Wilcox, 47 Vt. 537; Shrunk v. Schuylkill Nav. Co. 14 Serg. & R. 71.

De Courcy, J., delivered the opinion of the court:

The easement in an existing highway permits public uses on and beneath the surface of the way of a far-reaching and ever increasing character. Pipes, sewers, and sub

Unless negligence on the part of the de- ways impose no additional servitude upon fendant is shown, it is not liable.

Greenleaf v. Francis, 18 Pick. 117; Davis v. Spaulding, 157 Mass. 431, 19 L.R.A. 102, 32 N. E. 650; Acton v. Blundell, 12 Mees. & W. 324, 13 L. J. Exch. N. S. 289, 15 Mor. Min. Rep. 168; Chasemore v. Richards, 7 H. L. Cas. 349, 29 L. J. Exch. N. S. 81, 5 Jur. N. S. 873, 7 Week. Rep. 685, 1 Eng. Rul. Cas. 729; Smith v. Kenrick, 7 C. B. 515, 18 L. J. C. P. N. S. 172, 13 Jur. 362, 6 Mor.

into his neighbor's soil, and thus injure his neighbor's well and cellar.

A waterworks company was held guilty of a trespass in Odell v. Nyack Waterworks Co. 91 Hun, 283, 36 N. Y. Supp. 206, where, by closing the overflow pipe in its reservoir, it caused the waters to overflow a well on its premises, and in that manner unlawfully and wrongfully forced waters through a subterranean course into an adjoining landowner's well, causing the wall and arch thereof to loosen and cave, injuring plaintiff's premises. "While the defendant has the legal right to maintain a reservoir upon its premises, it was bound to so use and guard the same that it would not become source of annoyance or damage to the plaintiff and others."

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So, where one dug out a cellar and rain water collected there and percolated into the cellar of an adjoining landowner, he was held liable for the damages, in Snow v. Whitehead, 53 L. J. Ch. N. S. 885, L. R. 27 Ch. Div. 588, 51 L. T. N. S. 253, 33 Week. Rep. 128. This case comes within the decision of Rylands v. Fletcher, L. R. 3 H. L. 330, 37 L. J. Exch. N. S. 161, 19 L. T. N. S. 220, 6 Mor. Min. Rep. 129, 1 Eng. Rul. Cas. 235, affirming L. R. 1 Exch. 265, 12 Jur. N. S. 603, 14 Week. Rep. 799, discussed at length on page 541 of note in 15 L.R.A. (N.S.) supra, which turns on the principle that anyone who collects upon his own land

the land in the public street for which the owner of the fee can claim damages. Cheney v. Barker, 198 Mass. 356, 16 L.R.A.(N.S.) 436, 84 N. E. 492; Sears v. Crocker, 184 Mass. 586, 100 Am. St. Rep. 577, 69 N. E. 327; Bishop v. North Adams Fire Dist. 167 Mass. 364, 45 N. E. 925; Lincoln v. Com. 164 Mass. 1, 41 N. E. 112. As the appropriation of the space below the surface is not an invasion of his common-law rights, water, or anything else, which would not in the natural condition of the land be collected there, ought to keep it at his own peril, and that if it escape, he is liable for the consequences.

So, where a defendant landowner allowed rain water to accumulate in an excavation on his lot, he was held liable in Crommelin v. Coxe, 30 Ala. 318, 68 Am. Dec. 120, for damages caused by the water percolating into an adjoining lot owner's cellar; and he was liable notwithstanding the excavation was there when he purchased the lot from one who owned both lots, and he simply permitted the property to remain in the state in which it was when he purchased. Generally, as to connection with, or participation in, nuisance, essential to render one responsible therefor, see note to Adler v. Pruitt, 32 L.R.A. (N.S.) 889; and as to necessity of notice to render owner of premises liable for continuing a nuisance created by predecessor, see notes in 27 L.R.A. (N.S.) 164, and 50 L.R.A. (N.S.) 929.

So, a recovery was allowed in Nelson v. Godfrey, 12 Ill. 20, for damages resulting to plaintiff by reason of an excavation for a coal cellar made by defendant in the sidewalk in front of his premises, through which the water from the gutter of the street passed into defendant's cellar, and then through several other cellars into that 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. 278; Barry v. Lowell, 8 Allen, 127, 85 Am. Dec. 690; Flagg v. Worcester, 13 Gray, 601; Holleran v. Boston, 176 Mass. 75, 57 N. E. 220. And see "Ways and Waters in Massachusetts," 28 Harvard L. Rev. 478. It is not disputed here that the municipality duly gave consent to the defendant to lay the gas pipes in Maple street, and that the location of the trench was designated by the superintendent of streets under the terms of the vote of the board of mayor and aldermen. The defendant was thereby authorized to make use of the street under the public right. Rev. Laws, chap. 110, § 76. Pierce v. Drew, 136 Mass. 75, 81, 49 Am. Rep. 7; Lincoln v. Com. 164 Mass. 1, 10, 41 N. E. 112.

Mass. 439, 2 L.R.A. (N.S.) 269, 75 N. E. 953. A town constructing a sewer in land taken for that purpose is liable under Rev. Laws, chap. 49, § 2, for draining a well on land not adjoining the land taken, although at common law the owner of land lawfully may make excavations in it and thereby drain his neighbor's well. Trowbridge v. Brookline, 144 Mass. 139, 10 N. E. 796; Davis v. Spaulding, 157 Mass. 431, 19 L.R.A. 102, 32 N. E. 650. And under the East Boston tunnel statute (Stat. 1894, chap. 548, § 34, as amended by Stat. 1895, chap. 440, § 1), the owner of abutting land whose cellar was flooded owing to the unauthorized removal of a bulkhead was held entitled to compensation. Fifty Associates v. Boston, 201 Mass. 585, 88 N. E. 427. See also Pea

Rev. Laws, chap. 110, § 76, which authorizes gaslight companies to open the streets for the purpose of laying pipes, with the consent in writing of the mayor and aldermen, provides that "such consent shall not affect the right or remedy to recover damages for an injury caused to persons or property by the acts of such corporations." construct a drain on her own property or to some similar affirmative act, she was bound to do no more than a person of ordinary prudence would have done. As to defendants' contention that they had a right to do the acts complained of, by virtue of a reservation in a certain deed, and that by prescription they had the right to flood the land of plaintiff, it was a sufficient answer to say that they afforded affirmative defenses, and were not therefor under circuit court rule 7, admissible under the defendants' plea of the general issue.

On 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 recovery at common law the legislature has provided indemnity for injury suffered by abutters and others. Thus, compensation is recoverable under the highway statute for injury caused by surface water flowing upon an abutter's land by reason of raising the grade of a street. Rev. Laws, chap. 51, § 15. plained of. The court said that, while a | license thus to use a part of the public street may be inferred, it is on the condition that the person doing so shall use more than ordinary care and expedition in the prosecution of the work. It is a familiar principle that when one enjoys a privilege as a matter of favor, in consideration that he alone can enjoy the benefit, he is required to use extraordinary care in the exercise of the privilege. In this case but for the favor extended to the defendant the plaintiff would not have sustained this loss. The defendant alone can reap a benefit, and he ought to be responsible for all damages which might have been avoided by special vigilance and care.

The owners of a mill were held liable in Scott v. Longwell, 139 Mich. 12, 102 N. W. 230, 5 Ann. Cas. 679, where water from a mill race percolated through the banks into the cellar of an adjacent owner as a consequence of scraping and refilling after the race had been empty for a long time. Imputing to defendants under the law, said the court, a knowledge and skill possessed by competent millwrights, it must be presumed that they knew that the water would escape through the banks of the race, which had been so long empty, and they were bound to take precautions to prevent it. Even were it true that, to lessen the damages, plaintiff was under an obligation to

It has been held, however, that where the waters used for purposes of irrigation on a rice farm percolate through the inclosing levees, and injure the crops on an adjoining sugar plantation, notwithstanding the rice planter has exhausted all the usual and customary modes to prevent the seepage and protect his neighbor, the damage resulting therefrom will be damnum absque injuria. Nagel v. Madere, McGloin (La.) 325.

And so it has been held that a plaintiff has no legal cause of complaint against a defendant because water which gathers into defendant's cellar passes by percolation into plaintiff's cellar, where the injury results from plaintiff's act in sinking his cellar deeper than that of defendant. Beck v. Spinks, 11 Ky. L. Rep. 954 (abstract). J. D. C.

note blank, and placing a figure above it with a pen, where the statute provides that where there is a conflict between the written and printed provisions in a contract, the written ones must prevail, since the typewritten figures must be regarded as printed.

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 give the plaintiff a cause of action where none existed at common law, and to afford compensation for damage necessarily caused by work which was authorized by the statute and was executed in a reasonably proper manner. The present action is one of tort for alleged negligence. The jury specially found that the work on the trench was not done negligently; hence no case of liability at common law was made out, even assuming that an action of tort would lie for negligent acts done in carrying out the purposes of the statute. See Westcott v. Bos

ton, 186 Mass. 540, 72 N. E. 89. We cannot say that the judge was wrong in directing a verdict for the defendant; and under the terms of the report, based on the stipulation of the parties, the entry must be: Judgment for the defendant.

WYOMING SUPREME COURT.

Same

tion.

indorsee - want of considera

2. The defense of failure of consideration is not available under the negotiable instrument law against an indorsee of a negotiable note, unless prior to or at the time in the note, or knowledge of such facts of his purchase he had notice of infirmity that taking the instrument amounted to

bad faith.

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NORTHRUP NATIONAL BANK OF IOLA,

KANSAS.

(- Wyo. - 146 Pac. 593.)

Bills and notes

typewritten figures
change by writing conflict.
1. Uncertainty as to the rate of interest
in a note, so as to render it non-negotiable,
is not created by drawing with a pen a
ring around the figures representing such
Note.

Typewritten matter as written
or as printed matter.

The precise question presented in ACME COAL Co. v. NORTHRUP NAT. BANK, as to whether typewritten words or figures are to be deemed written or printed matter for purposes of the rule that written, shall prevail over printed, provisions in case of a conflict, does not seem to have been discussed elsewhere.

Typewriting, however, is stated to be a substitute for and the equivalent of writing, in Deep River Nat. Bank's Appeal, 73 Conn. 341, 47 Atl. 675, where a letter dictated to a stenographer and typewritten is held a sufficient compliance with that section of the General Statutes providing that, "in actions against the representatives of deceased persons, no acknowledgment or promise shall be sufficient evidence of a new or continuing contract to take the case out of the statute of limitations, unless the same be contained in some writing made or signed by the party to be charged thereby." And it has been held that typewriting is not printing within the court rule requiring abstracts of records and briefs to be

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Mr. H. N. Gottlieb, for defendant in

error:

Alleged uncertainty in the amount of interest payable did not affect the character of the instrument as a negotiable note.

2 Cyc. 142-144; 2 Am. & Eng. Enc. Law, 2d ed. p. 206 and notes; Busjahn v. McLean, 3 Ind. App. 281, 29 N. E. 494; Phillips v. Crips, 108 Iowa, 605, 79 N. W. 373; Durant v. Murdock, 3 App. D. C. 114; Thompson v. Hoagland, 65 Ill. 310; Cramer v. Joder, 65 Ill. 314.

printed. Carroll v. Holmes, 19 Ill. App. 564; Johnson County v. Bryson, 26 Mo. App. 484; Franco-American Loan & Bldg. Asso. v. Joy, 61 Mo. App. 162; Keating v. Lewis, 74 Mo. App. 226; Buckingham v. Reid, 5 Idaho, 312, 48 Pac. 1069; Sunday v. Hagenbuch, 18 Pa. Co. Ct. 540 (typewritten bill); National Bank v. Lovenberg, 63 Tex. 506; State v. Oleson, 9 Wash. 186, 37 Pac. 419.

And there seems to be in Buffalo & St. M. R. Co. v. Philadelphia & E. R. Co. 174 Pa. 263, 34 Atl. 561, a recognition of the fact that typewriting is not printing, and that in equity proceedings the one cannot be substituted for the other.

In Sunday v. Hagenbuch, 18 Pa. Co. Ct. 540, it is stated in the syllabus that under the act of June 18, 1895, P. L. 125, typewriting is given the same legal force, meaning, and effect as writing.

But typewritten notices are in State ex rel. Coleman v. Oakland, 69 Kan. 784, 77 Pac. 694, held sufficient to meet the statutory requirement as to posting printed notices of application to organize city of third J. D. C.

class.

Testimony of defendant Craig was properly stricken out.

The defendants contend that the note is not a negotiable instrument by reason of an uncertainty in the rate of interest it bears appearing on its face, there being a conflict between the rate as inserted in the printed blank by the typewriter, and that with pen and ink. The rule of construction provided by our statute (it being what is

Bank of Leadville v. Allen, 6 Colo. 594; Foy v. Blackstone, 31 Ill. 538, 83 Am. Dec. 246; MacRitchie v. Johnson, 49 Kan. 321, 30 Pac. 477; Violet v. Rose, 39 Neb. 660, 58 N. W. 216; Livingston v. Roberts, 18 Fla. 70; Blair v. Buser, Wilson Super. Ct. (Ind.) 333; Farmers' & M. Ins. Co. v. Dob-known as the uniform negotiable instruney, 62 Neb. 213, 97 Am. St. Rep. 624, 86 N. W. 1070; Nebraska Teleph. Co. v. Jones, 60 Neb. 396, 83 N. W. 197, 8 Am. Neg. Rep. | 270; Wittenberg v. Mollyneaux, 60 Neb. 583, 83 N. W. 842.

ment act) is, where there is a conflict between the written and printed provisions of the instrument, the written provisions prevail. Comp. Stat. 1910, § 3175, subdiv. 4. 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 "8" written with pen and ink,

court:

This is an action on a promissory note brought by the defendant in error against the plaintiffs in error. Trial was had to the court, and judgment rendered in favor of plaintiff below, and defendants bring error. The note was given by the Acme Coal Company, and indorsed by Ora Darnall and A. K. Craig, and payable to the order of the United States Iron Works Company. and by said company indorsed to the bank. The note bears date November 9, 1912, is for $1,589.15, due ninety days after date, with interest from date. A blank printed form was used, and the blanks filled in on a typewriter, and in the blank space for the rate of interest, after the printed word "at," the typewritten figures and words are "7 per cent from date." There is a circle drawn around the figure 7 with a pen and ink, and above it is the figure 8, also made with pen and ink. The defendants denied the execution of the note, but averred that if they did execute it, it was given in renewal of a former note dated August 3, 1912, which was given for a part of the purchase price of certain pit cars for use in the coal company's mines; that said cars were purchased from the iron works company by the coal company under an agreement that they were to be of the same kind and in all substantial respects like cars formerly purchased by the coal company from the iron works company; alleged certain defects in the cars which could not be discovered by inspection, but which the iron works company knew or should have known, and that the cars were practically worthless. That the cars were delivered during the year 1911 and fore part of the year 1912. That the plaintiff knew or should have known that said cars were defective and useless and worthless to the coal company, and if it purchased the note in suit it did not do so in good faith, but for the purpose of defeating the coal company's claim for damages against the iron works company.

the rule of the statute would unquestionably apply. The question here is: Is that portion of this note which is typewritten to | be considered as printed, or as written? When we consider what we conceive to be the reason for the rule as laid down in the statute, and the connection in which the words "written" and "printed" are there used, we think the question is not difficult of solution. The printed form or blank is used for convenience, and is prepared in advance of the final agreement between the parties; and when a conflicting provision is afterward inserted therein in writing, the natural and reasonable presumption is that the later and written provision expresses the true intent of the parties. The word "writing" is defined in the Century Dic tionary: "Specifically, as distinguished from printing, stamping, incision, etc., the act or art of tracing graphic signs by hand on paper, parchment, or any other material, with a pen and ink, style, pencil, or any other instrument."

And the word "print" is defined by the same authority: "Specifically, to stamp by direct pressure, as from the face of types, plates, or blocks covered with ink or pigments; impress with transferred characters or delineations by the exercise of force, as with a press or some other mechanical agency."

And "typewriting" is defined: "The process of printing letter by letter by the use of a typewriter." When, as in this case, it clearly appears from an inspection of the instrument that the blank form used was "printed," using that term in its common and ordinary sense, and the blanks therein are filled in on a typewriter, and it then further appears that there is a conflict between a typewritten provision and one afterward made with pen and ink, we think the typewritten portion of the instrument must be considered as "printed" within the meaning of the statute. We do not wish, however, to be understood as holding that in all cases and under all circum

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."

To so construe those words in the case before us would render the rule prescribed by 3175 meaningless and of no force; and in our opinion the case comes within the exception, "unless the context otherwise requires."

The defendants further alleged in their amended answer (upon which the case was tried) that they relied upon the agreement and representations of the iron works company that the cars were like the cars purchased prior to 1911 and could be used for the purpose for which they were intended, and it was by reason of said agreement and representations that the coal company was induced to buy and did buy said cars. As to those allegations, counsel for plaintiffs in error say in their brief: "By failure to deny, the reply of defendant in error admits the ninth paragraph of the answer,"that being the paragraph containing said 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 a written stipulation signed by the attorneys for the respective parties and filed in the court below, that the reply filed to the original answer should stand as the reply to the amended answer. That point is not therefore well taken.

The note being negotiable, the statute provides (§ 3217): "Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course."

lack of any evidence that the plaintiff had, prior to or at the time it purchased the note, any notice or knowledge of any defect or infirmity in the note, or knowledge of such facts that in its action in taking the instrument amounted to bad faith; which notice or knowledge was necessary to let in the defense of failure of consideration, breach of contract, or breach of implied warranty. Ireland v. Shore, 91 Kan. 326, 137 Pac. 926, The finding of the district court is general, but it must necessarily have held the note to be negotiable, and found that the defendants failed to establish fraud in the inception of the note, or notice of any infirmity or defect therein, or bad faith on the part of plaintiff as holder of the note.

We think the record sustains the judg ment, and it accordingly is affirmed.

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And by § 3213, id.: "The title of a person who negotiates an instrument is defective within the meaning of this chapter when he obtained the instrument or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he nego-Note. tiates it in breach of faith, or under such circumstances as amount to a fraud.”

Assuming the allegations of the amended answer to be sufficient to present the issue

(Sayre, J., dissents.)

(December 17, 1914.)

Right of water or light company to discriminate between consumers as to rates.

This note is supplementary to the note appended to State ex rel. Ferguson v. Bir

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