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of the dominant tenement, to the continuance of its use and exercise, as in the case of an easement for diversion of water; that he had the right to abandon the exercise and use of his easement, as it was not compulsory. But here, as stated, there has been no abandonment or surrender, and the case must be determined upon the equitable grounds arising out of the special facts found by the trial court.

2. As to the defendant Howitt, it is necessary only to observe that he stands, in respect to his lease, in the same plight and condition of his lessor, and with no other or greater rights. He has no right, under the lease, to use the dam, bulkhead, et cetera, as a reservoir to accumulate water in a manner not permissible to his lessor, or to accumulate and hold water for his mill on the stream below, in order to discharge it irregularly and in great volumes, as may suit his convenience, thus drawing down wholly, or in great part, the waters of the lake to the level of the flume. As a riparian owner on Mukwanago creek below, he has no such right, but is entitled only to the accustomed flow of the water as it had been wont to run, without material alteration or diminution, to his mill on the stream below (Kimberly etc. Co. v. Hewitt, 79 Wis. 334), all of which he obtains by the flow of the water over the dam or waste gates.

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For these reasons we think that the judgment of the circuit court is correct.

By the Court. The judgment of the circuit court is affirmed.

WATERS-RIPARIAN RIGHTS-LIABILITY OF OWNERS OF DAMS.-The right to the use of water in a particular manner is acquired by the uninterrupted adverse enjoyment of such use for over twenty years. Pillsbury v. Moore, 44 Me. 154; 69 Am. Dec. 91. The owner of a dam must so govern and control it that injury will not result to his neighbors: Fraler v. Sears Union Water Co., 12 Cal. 555; 73 Am. Dec. 562. A lower proprietor cannot raise any dam or other work to prevent the enjoyment, by the upper proprietor, of a servitude which exists in favor of his estate, notwithstanding the fact of an aggravation of the servitude: Barrow v. Landry, 15 La. Ann. 681; 77 Am. Dec. 199. As to the rights and liabilities of owners of dams, see monographic note to McCoy v. Danley, 57 Am. Dec. 684-693.

WATERS-ABANDONMENT OF WATER RIGHT.-A water right may be abandoned or lost: Note to Wimer v. Simmons, 50 Am. St. Rep. 700, 701. Such abandonment is a matter of intention, and, to constitute abandonment, there must be an intent to abandon: Note to Wilmer v. Simmons, 50 Am. St. Rep. 700.

SCHIFFLER V. CHICAGO AND NORTHWESTERN RAILWAY COMPANY.

[96 WISCONSIN, 141.]

RAILROADS-PASSENGERS-DUTY TO STOP AT STATION NOT SCHEDULED.—A passenger, whether with or without a ticket, must ascertain before boarding a railroad train whether it stops at the station of his destination. If he fails to do so, the railroad company is under no obligation to stop at such station, contrary to its published schedule.

RAILROADS-POWER OF CONDUCTOR.-It is not within the apparent power of the conductor of a railway passenger train to bind the company by a promise to change the published schedule of stops to be made by his train.

RAILROADS-CONTRIBUTORY NEGLIGENCE OF PASSENGER.-A boy, seventeen years of age, of ordinary intelligence, who has made previous railroad journeys alone, must be held to assume the risk of jumping from a moving train at a station at which the train is not scheduled to stop, although the conductor promised to slow up the train for him and he jumped under the impression that the promise was being kept.

NEGLIGENCE-PROXIMATE CAUSE.-The act of a passenger in jumping from a train while it is in rapid motion is neither the natural nor the probable consequence of a failure to stop the train according to promise. Hence, such failure is not the proximate cause of injury to the passenger arising from the jump.

Timlin & Glicksman and E. A. Conway, for the appellant.

Fish & Cary, for the respondent.

145 NEWMAN, J. In order to state a cause of action against the defendant, the complaint must allege such facts as show that the defendant failed in the performance of some duty which it owed to the plaintiff, and that such neglect of duty caused the plaintiff's accident. It is claimed that, under the circumstances, the defendant owed to the plaintiff the duty to stop its train at Jackson, so as to permit him to alight there. But the plaintiff's presence upon the train without a ticket, and in ignorance of the regulation which prevented it to stop at Jackson, was not through any fault or inadvertence of the defendant. By inquiry at the station before entering upon the train, he would have learned of the regulation. It was his duty to ascertain this for himself, and to regulate his conduct accordingly. Even if he had bought a ticket at the station, that would not have put upon the defendant the duty to stop its train at Jackson contrary to its published. schedule arrangements: Plott v. Chicago etc. Ry. Co., 63 Wis. 511. When he received the information that 146 the train would not stop at Jackson, it was too late to prevent a predicament. The train had left the station, and had entered upon its sched

uled and advertised journey. Without important reason, it should not be hindered or delayed. The conductor's duty, in the circumstances, was not doubtful. On payment of the proper fare, it was to carry the plaintiff to such station near to Jackson as the plaintiff should choose, and at which the train was scheduled to stop. It was, no doubt, the conductor's duty to run the train according to the published schedule, and he had no power to bind the company by any change from such schedule. Nor was it within his apparent power to make such change. So the plaintiff had no right to infer that the conductor had any power to bind the company by a promise to stop or slow up at Jackson: Plott v. Chicago etc. Ry. Co., 63 Wis. 511. From these considerations, it is plain that the defendant owed to the plaintiff no duty to stop the train at Jackson. So the failure to stop the train was no wrong of which he can complain.

The only wrong which is plainly alleged in the complaint is the conductor's promise to slow up the train. The promise was one which he had no right either to make or to keep. It does not plainly appear whether he in fact kept the promise. It does appear that the train was somewhat slowed up. The plaintiff thought the promise was being kept. After he had been carried some distance by the station, and when it did not appear to be slowing up any more, he jumped. No one advised him that it was safe to jump. No one knew that he was about to jump. He jumped on his own judgment that it was safe to do so. It was certainly a rash act, and its consequence to the plaintiff was serious. Nothing but his minority could relieve the plaintiff from responsibility for the act. If he had been four years older, there could be no question that he assumed and must bear the consequences of the act. But he was only seventeen years old. So great discretion cannot be required of him as if he had 147 been twenty-one years old. But it is required of him that he exercise such a degree of judgment and prudence as is ordinarily exercised by persons of similar age, experience, and intelligence. It does not appear that he was not a boy of ordinary intelligence. He lived in Milwaukee. He had on several occasions made journeys by railroad alone. He was not of such immature years as to be relieved from all responsibility for prudent conduct. His experience was such as to acquaint him with the fact that there was danger in jumping from a moving train. It must be held. that he jumped at his own risk.

Even if this were not so, it is not easy to apprehend how the failure to stop the train could be the proximate cause of the

plaintiff's accident. The natural consequence would be that plaintiff would be carried by the station. If this was a breach of a binding contract of carriage, it would furnish ground for appropriate damages. But that the plaintiff should jump from the train while in rapid motion was neither a natural nor probable consequence of the failure to stop the train. And so it could not well be anticipated. For that reason, it was not the proximate cause of the plaintiff's accident: Block v. Milwaukee Street Ry. Co., 89 Wis. 371; 46 Am. St. Rep. 849.

By the Court. The order of the superior court of Milwaukee county is affirmed.

Winslow, J., dissents.

RAILROAD COMPANIES—RIGHT TO REGULATE STOPS— DUTY OF PASSENGER.-A railroad company has the right, in the absence of statutory requirements, to determine for itself what trains shall stop at particular way stations. The traveling public is bound to accommodate itself to such regulations as may have been adopted: Sira v. Wabash R. R. Co., 115 Mo. 127; 37 Am. St. Rep. 386, and note. A railroad passenger must inform himself whether a train stops at a station. It is the duty of a person about to take passage on a railroad train to inform himself when, where, and how he can go or stop according to the regulations of the company: Atchison etc. R. R. Co. v. Gants, 28 Kan. 608; 5 Am. St. Rep. 780; Dwinelle v. New York etc. R. R. Co., 120 N. Y. 117; 17 Am. St. Rep. 611.

RAILROAD COMPANIES-NEGLIGENCE OF PASSENGER CONTRIBUTING TO HIS INJURY.-Generally, passengers cannot recover if they voluntarily assume a position of peril from which injury results to them: Jammison v. Chesapeake etc. Ry. Co., 92 Va. 327; 53 Am. St. Rep. 813, and note. But it is negligent and unwarrantable conduct on the part of the conductor of a train to advise a passenger to leave a moving train: Note to Evansville etc. R. R. Co. v. Athon, 51 Am. St. Rep. 310; note to Irish v. Northern Pac. R. R. Co., 31 Am. St. Rep. 904. But while a railroad company is bound to stop its train at the station to which it has contracted to carry a passenger, and to land him safely and conveniently, the fact that the train is about to pass such station without stopping does not justify the passenger in jumping from the moving train, unless expressly or impliedly invited to do so by the company: Walker v. Vicksburg etc. R. R. Co., 41 La. Ann. 795; 17 Am. St. Rep. 417, and monographic note. See monographic note to Ingalls v. Bills, 43 Am. Dec. 364, 365; Chicago etc. R. R. Co. v. Randolph, 53 Ill. 510; 5 Am. Rep. 60. In some cases the question of negligence under such circumstances is for the jury: Filer v. New York etc. R. R. Co., 49 N. Y. 47; 10 Am. Rep. 327; Georgia R. R. etc. Co. v. McCurdy, 45 Ga. 288; 12 Am. Rep. 577.

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ENOS v. SANGER.

[96 WISCONSIN, 151.]

VENDOR AND PURCHASER-ASSUMPTION OF A DEBT DUE A THIRD PERSON.-If a grantee in a conveyance to him assumes and agrees to pay the debt of a third person as part of the consideration for his purchase, he thereby becomes liable to such third person although his grantor is not liable for the debt and no consideration passes to the grantee from either of the other parties. The liability rests solely on the promise.

Action to foreclose a mortgage. C. M. Sanger purchased land under a deed providing that the grantee assumed and agreed to pay a certain mortgage debt on the land. He denied that he was personally liable for such debt under the deed, and recovered judgment to that effect. Plaintiffs appealed.

Miller, Noyes, Miller & Wahl, for the appellants.

C. F. Hunter, for the respondent.

152 MARSHALL, J. The decisions of the various courts are by no means uniform, either in respect to the binding effect of a covenant by a grantee of land to pay the consideration therefor to a third person, or the ground upon which the obligation rests, if sustained. It is useless to review and try to harmonize the various adjudications. In fact, it is difficult to find a line upon which they can be harmonized respecting the ground of the lia bility. In this state the liability rests upon the doctrine that where one person, for a valuable consideration, engages with another to do some act for the benefit of a third person, the latter may maintain an action against the promisor for the breach of the agreement. Such doctrine is the settled law in this state: Bassett v. Hughes, 43 Wis. 319; Hoile v. Bailey, 58 Wis. 434; Grant v. Diebold etc. Co., 77 Wis. 72; Kollock v. Parcher, 52 Wis. 393, and many other cases that might be cited. All that is required to render such rule applicable is for the obligor, for a sufficient consideration to support the promise, 153 to agree to do some act for the benefit of a third person. No question of subrogation or novation is involved. Such third person, whether sustaining any relation to the person with whom the agreement is made or not, or to the person from whom the consideration moves, may adopt such promise made for his benefit, and thereby bring himself into privity with the obligor, and enforce the promise. While the incidental effect of the execution of such promise is to discharge the debt of another to such third person, such promise is really to pay the debt of the promisor, to perform his

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