RIGHT TO WATER PERCOLATING SOIL.

MAINE SUPREME JUDICIAL COURT, NOV. 29, 1882.*

CHESLEY V. KING.

One has a legal right to dig a well anywhere on his own land for the purpose of obtaining water for his own use or for the benefit of his estate, and although the effect of it may be to withdraw the water percolating the ground to a spring from which another has the right to take water by an aqueduct, and dry up the spring, the owner of the soil will not be liable to an action on that account so long as he aets in good faith with an honest purpose. But if he digs the well for the sole purpose of inflicting damages upon the party who has rights in the spring, he will be liable.

BARROWS, J. Damages were claimed by the plaintiff for two acts of the defendant alleged to be wrongful and injurious. 1. The cutting off in August, 1879, of certain aqueduct logs lying in the defendant's land and leading from a spring at which the plaintiff had the right and privilege of taking and drawing water by an aqueduct, which aqueduct plaintiff alleges he put into the spring in 1870, for the purpose of supplying his premises. 2. The digging a well in the defendant's land above said spring with the malicious intent of cutting off the sources of supply from said spring, the result of which was that it became dry and useless.

It appears by the special findings that the jury affirmed the plaintiff's right to recover on both grounds and as the amount of damages found upon each is

fendant.

The writ is dated October 6, 1880; in it the plaintiff alleges that on October 12, 1863, he was the owner of a certain farm of ninety acres, and on that day sold the plaintiff ten acres therefrom, on which there was a valuable spring of living water, so elevated and situated that the water from the same would run and could be conducted and conveyed in pipes to his dwelling, barn and pasture, and that in the conveyance he expressly reserved the right and privilege of taking and drawing water from the spring by an aqueduct to his dwelling, barn and pasture for the use and supply of the same; that in June, 1870, he put an aqueduct into the spring to convey water to his premises, and used the same till August, 1879, when the defendant cut off the aqueduct logs; that the plaintiff then run another aqueduct to to the spring, when the defendant, "further intending to injure the said Chesley and to deprive him of his said right and privilege in said spring and water, wrongfully and unlawfully opened a well on his said land above said spring, and cut off and turned aside the vein of water supplying the same, diverted said vein of water from its natural course and flow to said spring, so that said spring became dry and useless to the plaintiff, and he was wholly deprived of the privilege and benefit of the same; and that the defendant "unlawfully and wrongfully and injuriously opened and dug ditches over, through and across the premises of the plaintiff's said logs and pipes in the same to said spring and well, and drew off and subverted the water therefrom and continued such unlawful and injurious drawing and subversion, intending to deprive the plaintiff of the use and benefit of the same and greatly him injure and damage thereby."

The plea was the general issue.

At the trial the jury returned special verdicts that the defendant dug "the well in question and the trench connected with it for the mere, sole and malicious purpose of diverting the veins of water which supplied the spring in question, and not for the purpose of procuring a better supply of water for himself and improving his estate," and that the "defendant was liable for severing and disconnecting the aqueduct on his own land in 1879," and returned a general verdict for the plaintiff, for $52.95.

The deed from Chesley to King of the ten acre lot contained this clause: "And I, the said Chesley, do reserve to myself the privilege of taking water from a spring on said land by an aqueduct to my house and barn, also to my pasture."

The opinion states the material facts.

Bean and Beane, for plaintiff.

L. C. Cornish, and Joseph Baker with him, for defendant.

To appear in 74 Maine Reports.

if either is found to be against law or evidence. 1. Touching the first claim for damages by reason of interference with the aqueduct in 1879. Very clearly the plaintiff did not put those aqueduct logs into the spring. The defendant did it, and the assistance which the plaintiff rendered was but trifling. But the plaintiff claims that under the circumstances it may be regarded as proved that he was an owner in common with the defendant in the aqueduct, and therefore entitled to maintain an action against his cotenant for the destruction of the common property. The jury must have so found, to give the plaintiff damages on this score. We think the finding was manifestly against the evidence. The plaintiff himself does not assert that there was any verbal arrangement even for a common proprietorship in the aqueduct. In the absence of any such arrangement, or of any adjustment between the parties so as to equalize the labor and expense of putting in the aqueduct down to the point where it branched off to conduct the water to the respective homesteads, it seems improbable that either party contemplated an ownership of the aqueduct in common. Plaintiff sold the land to defendant in 1863, reserving the right to take water from the spring by an aqueduct to his house, barn and pasture. Up to 1870, neither party seems to have made any use of the spring except to conduct it in a spout two or three rods to the highway, where they had a tub for a public watering place, and they shared the abatement of taxes thence accruing equally. For this purpose, shortly after the conveyance, they seem to have been jointly engaged in putting a wooden tank into the spring and laying the spout to the road, and the entire labor and expense was so trifling that as to that perhaps it might fairly be inferred that they were willing to let what one did offset what was furnished by the other without a precise reckoning. But as the more expensive and laborious job of puting in the aqueduct years afterward, it is not credible that they should have had any understanding for joint ownership without either previous arrangement or subsequent adjustment of the cost. The movement to put an aqueduct in the spring originated with the defendant in 1870, and his first plan was to come into the road from his own land. It is easy to see that the plaintiff had a strong interest to induce the defendant, if he could, to build his aqueduct in such a direction that he himself might supply his own premises by merely laying a branch of not more than ten or twelve rods in length, connecting with the defendant's. He did so induce him by suggesting to the defendant that he would find the distance shorter and the digging easier by going through his (plaintiff's) field until he was opposite his own premises, and by promising some little assistance, which he rendered, and was largely compensated therefor by the use of the defendant's aqueduct down to the point of departure of his own, for eight or nine years, and the subsequent

a man has a temporal loss or damage by the wrong of another, he may have an action upon the case to be repaired in damages;" and in the remark of the court in Walker v. Cronin, 107 Mass. 562, thereupon: "The intentional causing of such loss to another without justifiable cause and with the malicious purpose to inflict it, is of itself a wrong."

At all events it is worth while to examine the cases which are cited in support of the proposition above quoted from Glendon Iron Co. v. Uhler, to see how far the decision rests upon this doctrine, and how far upon other matters.

We think it will be found in most, if not in all of them, the case was well disposed of, either on the ground that the plaintiff had not the right or property which he claimed in the subject of the injury, or that the defendant's act might well be regarded as done not from the sole desire to inflict damage upon his neighbor, but partly, at least, from a justifiable, perhaps laudable design, to promote his own advantage or that of others, or protect his own property from subjection to some servitude by doing acts, which as between himself and the plaintiff, he lawfully might do, or because for reasons of public policy the plaintiff was precluded from asserting an act to be maliciously done which was within the scope of the defendant's authority or right, and might well be referred to legitimate motives.

The particular case of Glendon Iron Co. v. Uhler, supra, seems really to have turned upon the point that plaintiffs could have no exclusive right to use a mere geographical appellation as a trade mark, and that the defendant actually manufacturing the same article at the same place was equally entitled to consult his own advantage by using the same name as a trade mark. Where the plaintiff had no property to protect, it is perhaps not strange that the court should refuse to go into an inquiry as to the defendant's motives in doing an act which could not constitute an injury. That there was an admixture of what the law regards as a malicious motive for the defendant's act with other indifferent or laudable designs, could not be expected to confer a right of property on the plaintiff which he did not before possess. The case most relied upon to support the doctrine seems to be Phelps v. Nowlen, 72 N. Y. 39; and 28 Am. Rep. 93; and as it approaches the case at bar, perhaps as nearly in its facts as any other citation on the same side, it should receive careful examination. It presents the case of the withdrawal of a favor which the plaintiff had previously received from defendant in the maintenance of an embankment around a spring on defendant's land, which embankment raised the water in the plaintiff's well. The defendant dug through the embankment with the knowledge that such digging would diminish the water in the plaintiff's well and with the intention to do it; and the case finds "that in so far as such intent and purpose under the circumstances above found can constitute malice, his motive was malicious." But it is difficult to see how the simple withdrawal of a favor, which has conferred no vested right to its continuance, can constitute actionable malice. While the court undoubtedly arguendo refer approvingly to the doctrine under consideration as laid down very broadly in the cases cited, it is noticeable that it adverts with satisfaction to the probable existence of a lawful motive, thus: "It may have been lawfully done by the defendant to prevent a diversion of water, the use of which he claimed, and which, if allowed to continue, by lapse of time might ripen into a claim of right by prescription; and hence, although the ostensible object was to diminish water which has been unlawfully appropriated by another, the intent cannot well be considered as malicious, or the purpose a wrongful one. That it proves injurious to another is

more the fault of the party who reaps a benefit from that which does not belong to him, than of the one who was originally entitled to it and is only claiming his just rights." In further discussion of cited cases, the learned court also advert to the doctrine imported from the civil into the common law, as stated in Acton v. Blundell, and Chasemore v. Richards, supra, and remark thereon, "The rules last stated may perhaps be applied in cases where it is entirely obvious that the act was done solely for the purpose of inflicting a wrong, and with no intention of vindicating a right or preventing a wrong being done to the interests of another." Certainly the support given by this case to the doctrine contended for is somewhat equivocal, and the case seems really to have turned upon the want of any right in the plaintiff, and the probability of lawful and not (properly speaking) malicious motives in the defendant. The same elements are obvious in other cases cited to maintain this questionable dogma.

Thus in Auburn Plank Road Co. v. Douglass, 5 Selden, 444, the court seem to have held that in a case of the dedication of his land by a man to the public for use as a way, they would not inquire into his mo tives, at the instance of the corporation with a charter right to take toll, who alleged malicious injury. The motive might have been charitable, and the court apparently would not repress benevolence or public spirit by such an inquiry into its motives. But upon the same facts it was held that equity would restrain the dedicator from keeping his road open in such a way as to enable those who travelled on the plank road to avoid the toll gate. 12 Barb. 553.

We see no reason why a man should maintain an action against an underwriter or an insurance company for refusing to contract to insure his property because he has injected into his declaration an allegation that the refusal was malicious. Neither law nor equity could compel them to insure the property of those with whom they did not choose to contract. There is a plain lack of right in the plaintiff, and the proposed inquiry into motives is immaterial. Hunt v. Simonds, 19 Mo. 583.

The general doctrine of Walker v. Cronin, 107 Mass. 555, is not what counsel claim, but rather that while a man has no right to protection against competition, he "has a right to be free from malicious and wanton interference, disturbance and annoyance.' The dictum in Walker v. Cronin, adverse to this same doctrine as it was shadowed forth in Greenleaf v. Francis, 18 Pick. 117, seems to be based upon what we conceive to be the erroneous assumption that owner of a spring has no rights whatever in water percolating through the soil of adjacent proprietors, because his rights therein are assuredly subject to the paramount claims of the owner of the soil, operating in good faith in his own land, "for a justifiable cause."

the

Why anybody should have supposed that the courts would deem it worth while to indulge a litigious spirit so far as to inquire into the motives of a man who has thrown down fences on his own land, put there to mark the lines of a road never lawfully laid out, is not apparent. Such an immaterial inquiry was properly enough refused in Jenkins v. Fowler, 24 Penn. St. 308.

Litigation would be endless if the motives of those who are simply enforcing a legal claim were made the subjects of inquiry. It was rightly held they were not, in South Royalton Bank v. Suffolk Bank, 27 Vt. 505. And this is in harmony with the doctrine that proof of malice alone will not support an action for malicious prosecution when there is probable cause. Nor would it be wise, as matter of public policy, to throw down the bars which protect public officers from suits

for acts done within the scope of their duty and authority, by recognizing the right of every one who chooses to imagine or assert that he is aggrieved by their doings, to make use of an allegation that they were malicious in motive to harass them with suits on that ground, and it was rightly forbidden in Benjamin v. Wheeler, 8 Gray, 409. And here we come to the reasons well worthy to be considered, given for the rule in Phelps v. Nowlen: "A different rule would lead to the encouragement of litigation, and prevent in many instances a complete and full enjoyment of the right of property which inheres to the owner of the soil. * ** Malice might easily be inferred

sometimes from idle and lose declarations, and a wide door be opened by such evidence to deprive an owner of what the law regards as well defined rights." Apparently it is the danger of just such verdicts as that which was rendered in the case at bar, which has induced these courts of high standing to make a sweeping denial of the right to inquire into motives in such cases as we have been reviewing, where no substantial right of the parties complaining has been infringed.

We are not satisfied however that the rule can be maintained as broadly as it has been asserted on this account, and we think there is a still greater danger of its being perverted into a bulwark of oppression and injustice, by the denial of a remedy where a substantial right has been invaded. It seems to us that the denial is broader than the cases required. We think it cannot be regarded as a maxim of universal application that "malicious motives cannot make that a wrong which in its own essence is lawful."

Chatfield v. Wilson, 28 Vt. 49, is an authority not to be overlooked, for the instructions of Poland, J., there considered and condemned, were not substantially different from those given in the case at bar; and the court say: "It may be laid down as a position not to be controverted that an act legal in itself, violating no right, cannot be made actionable on the ground of the motive which induced it," apparently assuming that the wanton infliction of damage is not a violation of legal right. Washburn in his Treatise on Easements, etc., has an instructive review of decisions touching this point (pp. 488-492, 3d ed.), and notices (as do the court in Phelps v. Nowlen), the fact that in the later case of Harwood v. Benton, 32 Vt. 737, the

advantage in the digging of a well in his own land for the better supply of his own premises with water, should not be ignored if it were true that defendant did it "for the mere, sole and malicious purpose" of cutting off the sources of the spring and injuring the plaintiff, and not for the improvement of his own estate.

But the testimony is of a character that conclusively negatives the defendant's guilt. The vital facts in the case show that he suffered from a short supply of water now and then, during all the years that his aqueduct ran through the plaintiff's land, because the plaintiff's premises were lower than his, and the plaintiff persisted even in dry times in exercising the advantage which he there by had. The conclusion upon the whole evidence is irresistible that the defendant, after a long trial, was justified in severing his aqueduct from that which ran to the plaintiff's premises. Upon his doing so the plaintiff continued his aqueduct as he had a right to do to the spring, and entered it at a point lower than the defendant, and defendant was again deprived of a sufficient supply. There is no testimony, which fairly weighed, can lead to the conclusion that he dug the well for any purpose except to supply the deficiency that he experienced. The special finding on this point it altogether against the weight of evidence and must be set aside.

Motion sustained. Verdict set aside. New trial granted.

UNITED STATES SUPREME COURT

CORPORATION

ABSTRACT.

-

LIABILITY OF SHAREHOLDERS FOR DEBTS - HOW ENFORCED OREGON STATUTE. - The constitution of Oregon provides thus: "The stockholders of all corporations and joint stock companies shall be liable for the indebtedness of said corporation to the amount of their stock subscribed and unpaid, and no more." The statute of that State in relation to corporations provides thus: "All sales of stock, whether voluntary or otherwise, transfer to the purchaser all rights of the original holder or person from whom the same is purchased, and subject such purchaser to the payment of any unpaid balance due or to become due on such stock. But if the sale be volun

putation of wanton and improper motive as an element in the defendant's liability, and seem purposely to avoid expressing any opinion as to the correctness

of Chatfield v. Wilson on that point.

In commenting upon the general aspect of the question, Washburn says in substance that courts unequivocally recognize one's right to have his well or spring supplied by underground sources so far as to protect it against invasion by a stranger, and he adds: "It would therefore seem to constitute a something of which meum and tuum might be predicated, aud in regard to which the maxim sic utere, etc., would not be wholly foreign, especially when the party destroying it does it by using his property, not for his own benefit, but solely for the purpose of depriving his neighbor of what he would otherwise have rightfully enjoyed."

Upon the whole we are better satisfied with the view of the law on this point which we get from Acton v. Blundell, Roath v. Driscoll, Wheatley v. Bough, hereinbefore cited, and from Panton v. Holland, 17 Johns. 92, 98, and from the instructions approved in Greenleaf v. Francis, 18 Pick. 119, than with that given in Chatfield v. Wilson.

We think this plaintiff had rights in that spring, which, while they were completely subject to the defendant's right to consult his own convenience and

the amount of such balance, unless the same be duly paid by such purchaser." Held, that the individual liability of stockholders for the indebtedness of the corporation is limited to the amount of their stock subscribed and unpaid, and that the remedy of the creditor to enforce this liability is in equity, where the rights of the corporation, the stockholder, and all the creditors can be adjusted in one suit. Following Burke v. Cartwright, 7 Or. 329. The liability of the stockholder to the creditor is through the corporation, not direct. There is no privity of contract between them, and the creditor has not been given, either by the Constitution or the statute, any new remedy for the enforcement of his rights. See Sawyer v. Hoag, 17 Wall. 620. Judgment of U. S. Circ. Ct. Oregon affirmed. Patterson v. Lynde. Opinion by Waite, C. J.

by section 1 of the act of August 6, 1846, (9 id. 53,) and gave a bond with a surety, conditioned that if the importer or his "assigns" should within a specified time withdraw them in the mode prescribed by law from the warehouse, and pay to the collector a sum specified "or the true amount when ascertained, of the duties imposed " by law upon the sugars, the bond should be void, The statute required the goods to be kept subject to the order of the importer, "upon payment of the proper duties," to be ascertained on entry, "and to be secured by a bond" of the importer with surety. Afterward the importer sold the sugars in bond, the purchaser agreeing to pay the duties as part of the purchase-price, and gave to the purchaser a written authority to withdraw the sugars, on which they were withdrawn by the purchaser, but the full amount of the proper duties, which was less than the sum specified in the condition of the bond, was not paid. In a suit on the bond against the obligors to recover the unpaid duties, held, that they were liable. Although it was the usage of trade to sell goods in bond and deliver them by an order for withdrawal, the purchaser paying the duties and withdrawing the goods, the obligors in the bond did not become merely sureties, with the goods as the primary security for the duties, and they were not released because the officers of the United States unlawfully parted with the possession of the goods without exacting payment of the duties. The cases, in which it has been held that the United States had parted with rights by reason of acts done to the prejudice of persons who had contracted with them, have all been cases where there was authority of law to do such acts. In United States v. Admrs. of Hillegas, 3 Wash. C. C. R. 75, it was held by Washington, J., that acts of officers of the United States, acting within their proper spheres and to be imputed to the United States and considered as the acts of the United States, in extending the time for the payment of the debt due from a principal in a bond, discharged the sureties in the same bond, they not having known of or consented to the extension. The same principle was applied by Thompson, J., in United States v. Tillotson, 1 Paine, 306, to the case of the alteration of a contract by the United States without the consent of the sureties for its performance. But in the present case, the giving up of the goods without the payment of the duties was an act not only unauthorized, but forbidden by the statute. The question presented by this case is not a new one in this court. In Hart v.

United States, 95 U. S. 316, in a suit brought by the United States against the principal and sureties on a distiller's bond, to recover taxes on spirits distilled by the principal, the sureties pleaded that the taxes were a lien on the spirits, and that the collector without the knowledge or assent of the sureties, and without first requiring the payment of the taxes thereon, permitted the principal to remove from the distillery warehouse distilled spirits more than sufficient in value to pay the demand. This court held, that as under the statute no distilled spirits could be removed from the warehouse before payment of the tax, and no officer of the United States had authority to dispense with the requirement of the law, the United States were not bound by the acts of the collector; and the prior cases of United States v. Kirkpatrick, 9 Wheat. 720; United States v. Van Zandt, 11 id. 184; United States v. Nicholl, 12 id. 505; Gibbons v. United States. 8 Wall. 269; aud Jones v. United States, 18 id. 662, were cited as establishing that the government is not responsible for the laches or the wrongful acts of its officers; and it was said by the chief justice, delivering the opinion of the court: "Here the surety was aware of the lien which the law gave as security for the payment of the tax. He also knew that in

order to retain this lien, the government must rely upon the diligence and honesty of its agents. If they performed their duties and preserved the security, it inured to his benefit as well as that of the government; but if by neglect or misconduct they lost it, the government did not come under obligations to make good the loss to him, or what is the same thing, release him pro tanto from the obligation of his bond. As between himself and the government he took the risk of the effect of official negligence upon the security which the law provided for his protection against loss, by reason of the liability he assumed." These views are conclusive to show that the importers as well as their surety are liable on the bond in this case. If the importers could be regarded as having always been or as having at any time become sureties only in respect of the duties, with the goods as the primary security (a position shown to be wholly untenable), it is well settled by the decisions of this court, that the negligence of the officers of the government does not affect the liability of a surety in a bond any more than it does that of his principal. United States v. Kirkpatrick, 9 Wheat. 720; United States v. Van Zandt, 11 id. 184; Dox v. The Postmaster-General, 1 Peters, 318. Judgment of U. S. Circ. Ct., S. D., New York. Minturn v. United States. Opinion by Blatchford, J.

PRACTICE-APPEAL- RIGHT OF APPELLANT NOT CONCLUDED BELOW. - In a foreclosure suit pending in the Circuit Court-the mortgage property being in possession of its receivers-the State of Georgia presented a petition, in which, declining to become a party to the suit, it asked that the receivers be required to withdraw from the possession of a part of the property in their hands, upon some of which executions for State taxes had been levied prior to their appointment. The petition was denied and dismissed. Held, that the action of the court could not be reviewed upon the appeal of the State, for the reason, if there were no others, that the order did not conclude any right it had in virtue of the executions, or of the levies made thereunder. D., Georgia, affirmed. Opinion by Harlan, J. (Decided Dec. 18, 1882).

Decree of U. S. Circ. Ct., S. State of Georgia v. Jesup.

MAINE SUPREME JUDICIAL COURT

ABSTRACT.*

ADVERSE POSSESSION-MISTAKE IN DESCRIPTION IN DEED. A mistake in a deed, by which premises different from those intended are described, does not prevent the grantee from acquiring a title to the land intended to be conveyed, by prescription. Bean v. Bachelder. Opinion by Danforth, J. [Decided Dec. 14, 1882].

WHEN SALE ON

EXECUTION - AMENDMENT OF ERRONEOUS, NOT VOID.— -When the only error in an execution is the statement of an insufficient balance as still due on the judgment debt, it is amendable; and and when a defect in final process is amendable, it will be regarded as amended in proceedings involving the validity of acts done by virtue of it, unless the rights of third parties have intervened or injustice will thereby be done. A sale of lands upon execution will not be held void on account of an error of the clerk, which may be amended without prejudice, leaving all parties in the same position they would have occupied, had the execution issued correctly at first. See Wright v. Wright, 6 Green. 415; Chase v. Gilman. 15 Maine, 64; Colby v. Moody, 19 id. 111; Smith v. Keen, 26 id. 420; Rollins v. Rich, 27 id. 557; Morrell v. Cook, 31 id. *Appearing in 74 Maine Reports.