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In re

Central Law Journal. to give them a preference. The trustee,

therefore, could not recover upon the ground

stated in subdivision b of the act. But ST. LOUIS, MO., NOVEMBER 9, 1900.

the bankruptcy act provides, in section 57g,

that "the claims of creditors who have reThe important question arose in the case of ceived preferences shall not be allowed unless

efore the Circuit Court of Ap- such creditors shall surrender their preferpeals of the Ninth Circuit, whether a pay- ences.” It appeared that appellees have ment made on account by an insolvent debtor, not surrendered their preference, yet seek to in the ordinary course of business, within have their claim allowed for the balance due four months prior to his adjudication in them from the bankrupt, upon the contention bankruptcy, where it does not appear that that they received the payment from the the creditor receiving the payment had rea- | bankrupt in good faith, without knowledge sonable cause to believe that it was intended of its insolvency, continued to sell goods to as a preference, constitutes a preference, un the bankrupt firm in the usual course of der the bankruptcy act, that will prevent the business, and that the acceptance of said allowance of the creditor's claims for the payment on account should not be held as a balance of the account. Section 60 of that preference which would prevent the allowance provides :

of their claim. "(a) A person shall be deemed to have The court, after a review of the act, and a given a preference if, being insolvent, he has consideration of its scope and purpose, held procured or suffered a judgment to be entered that it cannot be considered inequitable to reagainst himself in favor of any person, or qaire one who has received an undue portion made a transfer of any of his property, and of the estate, no matter if innocently, to surthe effect of the enforcement of such judg. render that advantage before participating in ment or transfer will be to enable any one of further distributions of the estate with those his creditors to obtain a greater percentage who have not received such preference. of his debt than any other of such creditors It was urged very earnestly on behalf of of the same class.”

the appellees, and by counsel who apIt was questioned whether a payment of peared as amici curiæ, that this interpretamoney in the ordinary course of business can tion of the act will be disastrous to credit; be considered a transfer of property. In tbat it will unsettle business, and render section 1 of the same act, however, the word mercantile transactions so uncertain and in"transfer" is defined as including the sale secure that the country at large will suffer and every other and different mode of dis- by it. It is further contended that congress posing of or parting with property, or the did not intend by this act to interfere with possession of property, absolutely or condi or disturb the ordinary course of business of tionally, as a payment, pledge, mortgage, the country; and, in support of a construcgift, or security.” As the word "property" tion of the statute that will avoid such supis legally understood to include every class posed consequences, numerous authorities of acquisitions which a man can own or have are cited, which may be summed up in the an interest in, it must certainly cover money; rule that "statutes will be construed in the and the payment of money, therefore, by an most beneficial way which their language insolvent to an unsecured creditor within the will permit to prevent absurdity, hardship statutory period must be considered a trans or injustice.” fer of his property, constituting a preference, ""The first observation pertinent to the con. under section 60a of the act of bankruptcy, sideration of this rule,” says United States the enforcement of wbich transfer would Judge Morrow, "is that the province of conallow one creditor to obtain a greater per-struction lies wholly within the domain of centage of his debt than any other creditors ambiguity. It must therefore appear that of the same class.

the statute is ambiguous, and thus open to It was not contended that the preferred construction. The considerations of evil creditor believed or had any knowledge that and hardship may properly exert an influence the payment from the bankrupt was intended | in giving a construction to a statute when its

language is ambiguous or uncertain and ence; (3) a claim of a creditor who bas redoubtful, but not when it is plain and ex. ceived a preference shall not be allowed, unplicit. The same may be said of the consid- less such creditor sball surrender his prefereration of convenience, and, in fact, of any

ence.consequences. If the intention is expressed 80 plainly as to exclude all controversy, and THE LAW OF SURFACE WATER AS is one not controlled or affected by any pro. APPLICABLE TO MISSOURI AND vision of the constitution, it is the law, and STATES BOUNDED BY LARGE courts have no concern with the effects and RIVERS. consequences. Their simple duty is to ex.

Sec. 1. Introduction:-The law of surface ecute it. That the bankrupt act is ambig. uous and uncertain in many of its provisions

water deserves considerable attention in this cannot be denied, but we are of the opinion State. It has furnished the subject of about that the particular provisions under consid-seventy decisions in our reported cases and eration are reasonably clear and certain.

has been the occasion of an apparent conflict

of autbority in our supreme court. It is the Section 57g provides that the claims of creditors who have received 'preferences' shall

more useful as a branch of study for the pro

fession of Missouri because of the presence not be allowed unless such creditors shall surrender their 'preferences.' There is no

in our territory and upon our border of two

of the largest rivers in the world; for, in the ambiguity in this provision, and no uncertainty as to its purpose. When a creditor

level and fertile bottom lands of these rivers,

the question of the rights of drainage and represents a bona fide claim against the bankrupt estate, the question to be determined pulsion of surface water often becomes of a is, has the creditor received a 'preference

practical and serious nature. in his dealings with the bankrupt? If he

Sec. 2. Definition.-The courts have not has, the claim cannot be allowed. If he has

defined surface water with exactness. The not, it must be allowed. Then the question

best definitions are negative in their terms arises, what is the meaning of the word

and seek mainly to distinguish surface water 'preference?' If we turn to section 60a, we

from the waters of streams. Surface water find the word 'preference' defined, and it

may be said to be vagrant or wandering is there declared to mean 'a transfer' by

water lying upon or passing over the surface the bankrupt 'of any of

of bis property,'

of land or percolating through the soil, and where the effect of the enforcement of such

not being within a water course. It matters a 'transfer' will be to enable any one of his

not from what source such waters come,creditors to obtain a greater percentage of

whether from rains or melting ice and snow,? his debt than any other of such creditors of

or from the overflow of streams or rivers, or the same class. This definition fits very

from underground springs, or from a water closely into section 57g, and points out still

course through the interstices of the rocks, 5 — more distinctly the preferred claims that are

if they have the qualities of a casual and disallowed. But, to understand accurately temporary nature, and of not being part of a the character of the transaction that will

natural water course, they are treated as suramount to a preference, we must look for the

face waters. It follows, then, that to define meaning of the words 'transfer of property.'

surface waters we must define with particuThis meaning is found in paragraph 25, of larity a natural water course. section 1, of the act, where a payment is

Sec. 3. Surface Waters Distinguished from explicitly made one of the methods of transferring property. With respect to the ques

1 Shane v. R. R., 71 Mo. 257; Pope v. Boyle, 98 Mo.

527; Doerbaum v. Fisher, 1 Mo. App. 149; Martin v. tion under consideration, the statute itself

Benoist, 20 Mo. App. 262; Waterworks Co. v. Jepkins, bas furnished us with this information : 62 Mo. App. 74; Swett v. Cutts, 50 N. H. 439.

2 Benson v. R. R., 78 Mo. 501. (1) That a payment of money is a transfer

3 McCormick v. R. R., 57 Mo. 433; Shane v. R. R., 71 of property; (2) a transfer of property by Mo. 287; Abbott v. R. R., 83 Mo. 271; Brink v. R. R., an insolvent debtor, whereby his creditor 17 Mo. App. 177; Schneider v. R. R., 27 Mo. App. 68;

Kenny v. R. R., 74 Mo. App. 301. obtains a greater percentage of his debt than

4 Swett y. Cutts, 50 N. H. 439. any other creditor of his class, is a prefer. * Waterworks Co. v. Jenkins, 62 Mo. App. 74. •

Water Courses.--A water course is a stream rule for the treatment of water courses may, of water usually flowing in a particular direc- for the purposes of this paper, be stated as tion, baving a well defined channel, bed and follows: "Unless lawfully authorized no banks, and generally discharging itself into one can interfere to any material extent with some other stream or body of water. The the water of a running stream, and there may water need not flow all the time. A water be recovery for damage caused thereby withcourse may be dry part of the year.?. It does out proof of negligence."]6 Such diversion not include the water flowing in the gorges or

is & nuisance.17 And where the injurious ravines of the land from higher to lower overflow is aggravated by the effects of meltlevels after rains or melting snows, though ing snows and falling rains, it is not incumin some States the courts seem inclined to bent on either court or jury to discriminate treat these waters as natural streams when between the damages so caused and those rethey have from time immemorial escaped sulting purely from the action of the living through such channels regularly after the stream.18 Of course, a municipal corporaspring rains.' But a water course usually tion is bound by this rule if it enters upon must be fed from other and more permanent the construction of culverts or drains, even sources than mere surface drainage.10 Sub- though it need not have undertaken the work terranean waters are subject to the same dis at all.19 tinction between those following the course Sec. 4. Sloughs, Ponds and Lakes.of a well defined channel and those wander

Some interesting questions have arisen in reing abroad or oozing through the soil. The

gard to the nature of the water contained in former class is governed by rules analogous the sloughs or bayous so common along our to those applicable to water courses; the great rivers. These are depressions along latter class is treated as surface water.11 A

the banks of the stream with more or less right of water way for surface drainage may clearly defined channels. They are somebe acquired by grant or prescription,12 and

times filled only by the overflow of the river, thereafter this right of way will be regarded sometimes by surface water; while sometimes as a water course as between the parties, and they contain running water which empties its obstruction will be actionable. As soon

into the main stream lower down.

When as water enters a stream and commences to

such depressions are filled with overflow or flow in its channel, it ceases to be surface

drainage from rain and snow, the water has water and constitutes a water course.18 But usually been considered surface water.20 But if the stream, in a low place, spreads out into

it seems that there is a little dubiety on the a morass and lower down again resumes its

point. In the important case of Shane v. R. course in its banks, this bog is not surface

R., 21 it is not impossible that the court really water but is still part of the water course.14

based its decision upon its belief that the The natural overflow of streams and rivers slough in question should be treated as a is, as has been said, surface water. But

water course. 22 In Railroad v. Schneider, 23 water caused to overflow the banks of a

the controversy was over the damming up of stream by a wrongful obstruction of its chan

the "thumb," a slough extending from a nel is still a part of the water course. 15 The

water course at right angles without a cur6 Hoyt v. City of Hudson, 27 Wis. 661, quoted in Jones v. R. R., 18 Mo. App. 74; Gray v. Schriber, 58

16 Abbott v. R. R., 83 Mo. 271. See also Rose v. St. Mo. App. 173.

Charles, 49 Mo.510; Imler v. Springfield, 55 Mo. 119; 7 Rose v. St. Charles, 49 Mo. 510.

Munkers v. R. R., 60 Mo. 334; Hosher v. R. R., 60 Mo. 8 Hoyt v. City of Hudson, 27 Wis. 661.

329; Van Hoozier v. R. R., 70 Mo. 145; Mangold v. R. ' 9 Palmer v. Waddell, 22 Kan. 352; McClure v. City,

R., 24 Mo. App. 52. 28 Minn. 186; Am. Law Rev. vol. xxiii, p. 376; Gould

17 Dickson v. R. R., 71 Mo. 577. on Waters (2d Ed.), 522.

18 Bird v. R. R., 30 Mo. App. 365. 10 Jeffers v. Jeffers, 107 N. Y. 650, cited in Gray v. Schriber, 58 Mo. App. 173.

19 Young v. Kansas City, 27 Mo. App. 101; Dillon, 11 Waterworks Co. V. Jenkins, 62 Mo. App. 74.

Mun. Corp. $ 777. 12 Dunham v. Joyce, 129 Mo.5; Vaughn v. Rupple,

20 Shane v. R. R., 71 Mo. 237; Abbott v. R. R., 88 69 Mo. App. 583.

Mo. 271; Jones v. R. R., 18 Mo. App. 251; St. L. & I. 13 Jones v. Hannovan, 55 MO. 462.

M. R. R. v. Schneider, 30 Mo. App. 620. 14 Munkers v. R. R., 72 Mo. 514; McComber v. God.

21 71 Mo. 237. frey, 108 Mass. 219.

22 See Abbott v. R. R., 83 Mo. 271, and post, sec. 11. 15 Brink v. R. R., 17 Mo. App. 177

28 30 Mo. App. 620.

rent and having no flow except in times of regard to the repulsion of surface water and freshet. Though it was held to be no water the obstruction of its flow, there is an ircourse, Judge Thompson in a dissenting reconcilable conflict of authority in the deopinion seemed inclined to think it should be cisions of the States. No less than three so treated. And in Kenny v. R. R.,24 it was distinct doctrines are followed. These are held that water escaping from a creek be known as the common law rule, the civil law comes surface water as soon as it leaves the rule and a modified rule. In regard to the creek, but loses that character when it latter, it is sufficient for our purpose to say reaches a slough; and that whether a slough that the courts seek to apply the rules to the which leaves a creek and then returns to it is circumstances of each case, allowing the oba water course or not is a question for the structing proprietor the fullest control of his jury. Lakes and ponds having defined property consistent with the rights of others banks and a permanent nature are treated by not to be injured. This rule is followed in the rules of water courses, even if they are Arkansas and South Carolina. 33 filled merely by surface drainage.25 A land. Sec. 7. Same-Statement of the Common owner may so ditch his own land as to collect Law and Civil Law Rules.-Perbaps the and cause to flow into a pond in a body sur. clearest statement of the two doctrines is face water which formerly flowed into the that found in the leading case of Hoyt v. pond through natural channels.26 Of course, City of Hudson, 34 cited with approval in he may not drain his ponds or stagnant inany Missouri cases: “The doctrine of the waters upon his neighbor.27 But overflow of civil law is that the owner of the upper or doma pond caused merely by detrition will not be inant estate has a natural easement or servrelieved against.28 The water of bogs, itude in the lower or servient one, to disswamps, fens and morasses, being of a va. charge all waters falling or accumulating on grant and unconfined character, is generally his land, which is higher, upon or over the classed as surface water.29

land of the servient owner, as in a state of Sec. 5. Proprietary Rights in Surface nature; and that such natural flow or passage Water.—The rights of the owner of the soil of the water cannot be interrupted or preover which a water course passes are merely vented by the servient owner to the detriment those of the reasonable use of the water. 30 or injury of the dominant or any other proHe may not materially diminish, divert or prietor. The doctrine of the common law is obstruct the flow. But surface water is that there exists no such natural easement or regarded for many purposes as part of the servitude in favor of the owner of the higher soil itself. The owner of the land owns the grounds as to mere surface water; and that surface water on it or in it, and he may drain the proprietor of the inferior tenement may, it or retain it even if he thereby cuts off the if he choose, lawfully hinder or obstruct the supply from his neighbor's spring, provided flow of such water thereon, and in doing so he does not do so maliciously or unreason may turn the same back upon or off onto or ably ;31 and it is perhaps doubtful but that he over the lands of other proprietors without may do so even with malice.32 But inasmuch liability ensuing from such obstruction or as surface water is a thing usually more to diversion.” In analyzing the decisions we be shunned than desired, the more important find that those courts which follow the civil questions are relative to its repulsion or oblaw rule base their reasoning upon the necesstruction.

sity of refraining from damage in the use of Sec. 6. Repulsion of Surface Water.-In one's own and also upon the natural configu

ration of the soil. In ovher words, these 24 74 Mo. App. 801.

courts yield obedience to the maxims, "sic 25 Schaefer v. Marthaler, 34 Minn. 487. 20 Hoester v. Hemsath, 16 Mo. App. 485.

utere tuo ut non alienum lædas," and "aqua27 Schneider v. R. R., 29 Mo. App. 68.

currit et debet currere."35 On the other 28 Hoester v. Hemsath, 16 Mo. App. 485.

2 Am. & Eng. Enc. of Law (1st Ed.), under head "Surface Waters."

83 See Am. & Eng. Enc. of Law (1st Ed.), under 30 Am. & Eng. Enc. of Law (1st Ed.), vol. 28, p. 949. head "Surface Waters;" Gould on Waters (20 Ed.), 31 Waterworks Co. v. Jenkins, 62 Mo. App. 74. p. 528; Am. Law Rev. vol. xxiii, p. 376. 32 Phelps v. Nowlen, 72 N. Y. 39; Chatfield v. Wil. 84 27 Wis. 659. son, 28 Vt. 53.

88 The leading cases on the civil law rule are Martin

hand, the courts wbich follow the common the common law rule. In one paragraph, law rule, while not denying the force of these however, the court intimated that it would be maxims, feel that their application to surface actionable thus to collect the water in a body water is an infringement upon one's right to and precipitate it upon the plaintiff. When the "free and unfettered control of his own the case came up again Judge Napton, who land, above, upon and beneath the surface":86 delivered the opinion, regarding the paragraph as expressed in the maxim "cujus est solum, noted as expressing the rule of the civil law, ejus est usque ad coelum.So much for the and citing the cases of Laumier v. Francis and general statement of the rules. A proper Kaufman v. Griesemer 42 declared that the understanding of both is necessary for the plaintiff was entitled to recover because of reason that our courts have nominally fol the violation of his easement to receive the lowed both doctrines.

water as it would naturally flow. He exSec. 8. Same-Missouri Law on the Sub- pounded and expressly adopted the rule of ject. The earliest decision in this State was the civil law. To the majority opinion in the case of Laumier v. Francis.37 That Judge Hough dissented. case merely held that one who dams up Subsequently the case of Shane v. R. R.43 water on another's lot by erecting a house came up for decision. The facts were the upon his own could not recover for any dam reverse of those in the McCormick case. The age occasioned thereby to his own house. railroad embankment dammed up a slough Yet the court seemed to bint at a following so that the overflow of the Missouri river of the civil law rule by unnecessarily defining was backed up upon plaintiff, to his damage. a servitude or easement. After that followed

After that followed Judge Napton again delivered the opinion of a line of decisions38 more or less clearly sup the court. It was more elaborate than the porting the common law rule. They uphold other in its discussion and more positive in the doctrine of Jones v. Hannovan,ao that its adoption of the civil law rule. It held "each proprietor may control merely surface that the plaintiff might recover because his water so as to protect bimself and drain it easement in the unobstructed flow of water off from his own land. Surface water is con had been violated. Judge Hough dissented sidered a common enemy that each proprietor still more vigorously than before on the may and must fight for himself.” The law grounds of precedent and of principle. By of this State, then, was clearly settled in these two decisions, the civil law rule was in favor of the common law rule when the case terms adopted as the law of Missouri. Yet of McCormick v. K. C., St. J. and C. B. R. within a year after the second of them we R. came for the second time before our su find the court* approving instructions to the preme court.40 The facts were as follows: effect that there could be no recovery for The railroad company, in constructing its damages from the repulsion of mere surface road bed across an elliptical swale or depres-water. Then followed a line of decisions45 sion in the earth, had caused the surface firmly re-establishing the common law rule. water to become dammed on the upper side In Abbott v. R. R.46 the court expressly of the track. The relieve itself of this it cut overruled the Shane case and adopted the & sluice-way or culvert through the embank

common law doctrine. ment, thus precipitating the surface water in

Sec. 9. Same-Has Missouri ever followed a body upon plaintiff's land, to his damage.

the Civil Law Rule?-It is not impossible The case had been in the court before, 41 and had been remanded with a clear statement of 12 26 Pa. St. 407.

43 71 Mo. 237. v. Riddle, 26 Pa. St. 415, and Kaufman v. Griesemer, 44 In Munkers v. R. R., 72 Mo. 514. 26 Pa. St. 407.

45 Benson v. R. R., 78 Mo. 504; Stewart v. Clinton, * Gapnon v. Hargadorn, 92 Mass. 106, the leading 79 Mo. 603; Jones v. R. R., 84 Mo. 181; Dunham v. case on the common law rule.

Joyce, 129 Mo.5; Hoester v. Hemsath, 16 Mo. App. 37 23 Mo. 181.

485; Jones v. R. R., 18 Mo. App. 251; Martin v. Be. 88 Clark's Admx. v. R. R., 36 Mo. 202; Jones y. Han. noist, 20 Mo. App. 262; Field v. R. R., 21 Mo. App. novan, 55 Mo. 462; Hosher V. R. R., 60 Mo. 329; 600; Schneider v. R. R., 29 Mo. App. 68; Burke v. R. Munkers v. R. R., 60 Mo. 334.

R., 29 Mo. App. 370; Bird v. R. R., 30 Mo. App. 365; 89 65 Mo. 462.

Railroad v. Schneider, 30 Mo. App. 360; Collier v. R. 40 70 Mo. 359.

R., 48 Mo. App. 398. 41 57 Mo. 483.

46 83 M0.271.

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