pair. The Public Statutes, c. 49, § 95, have no application to the case. The cases of Stockwell v. Fitchburg, 110 Mass. 305, and Sullivan v. Boston, 126 Mass. 540, conclusively show that for these reasons the plaintiff cannot maintain this action. It is not necessary to consider the other objections to his right to recover. Exceptions overruled.

(140 Mass. 205)

(Hampden, ss.)

SMITH V. LANGEWALD.

Filed October 24, 1885.

EASEMENT-RIGHT OF FLOWAGE.

Where the defendant was the owner of an easement of flowage over certain land, the erection, by the owner of the servient tenement, of a fence to restrain cattle pasturing thereon, of the character of ordinary farm fences, would not, when the owner of the easement of flowage was making no use thereof, indicate any intention on the part of the owner of the servient tenement to use the land in any way inconsistent with the easement, and such an erection would not be such an interference with the easement as would justify the defendant in forcibly removing the same.1

Action of tort for breaking and entering the plaintiff's close at Chicopee, and tearing down a fence thereon. At the trial in the superior court, before BRIGHAM, C. J., without a jury, it appeared that the plaintiff's premises consist of a pasture, used by him for pasturage purposes, which was part of a farm to which he obtained his title by inheritance from his father, Luther Smith, and by purchase from the other heirs at law of his father, in 1858. Luther Smith obtained his title to said farm in 1837, by a deed to him from Sylvester Taylor, whose title to the same was obtained in 1836, by a deed from Eleazer Wright. The defendant obtained his title to land adjacent to the plaintiff's pasture in 1828, by sundry mesne conveyances from Stephen C. Bemis, who in 1828, by a deed from said Wright, acquired title to the land now owned by the defendant, and adjoining the plaintiff's pasture. The deed of Wright to Bemis contained the following provision:

"Also the right and privilege of flowing any of our lands which have heretofore at any time been flowed, by reason of a dam having been erected across the abovementioned brook, the Willimansett, near where there was a saw-mill erected, together with the privilege of erecting or repairing and keeping up a dam, and of raising and keeping the water to the height aforesaid, and of using said water for the purpose of propelling any kind of machinery which he the said grantee may erect, or cause to be erected, on the premises.

The dam above mentioned was used for the purpose of propelling machinery until 1872, and the flowage caused thereby extended to the distance of 60 rods above the dam, and to 40 rods above the south-westerly boundary of the plaintiff's pasture. In 1872 the dam was carried away, and in 1882 was partially rebuilt, but not so as to cause flowage of any part of the plaintiff's pasture. The fence, the removal of which is complained of, had been maintained along the southerly and south-westerly boundaries of the plaintiff's pasture, and Willimansett brook, since 1872. Said fence consisted in part of a post and three-rail fence, and in part of a stake

1 See note at end of case.

withe and two-rail fence; and of the former, in 1884, the defendant removed about five rods in length, and of the latter about fifteen rods in length. All of the fence thus removed was on land which, prior to 1872, was flowed by means of said dam. The judge found that the plaintiff's fence removed by defendant was on land flowed by the dam existing on the defendant's premises in 1828, to which the provisions of the deed of Wright to Bemis applied. Upon these facts the judge ruled that the defendant had, at the time of removing the plaintiff's fence, a right of flowage over the land upon which the fence stood; but that, in assertion and furtherance of said right, the defendant could not lawfully remove the fence, and found for the plaintiff in the sum of five dollars. The defendant alleged exceptions.

R. O. Dwight, for defendant.

W. W. McClench, for plaintiff.

DEVENS, J. It is the contention of the defendant that, if he had left the plaintiff's fence undisturbed, its existence would in time have worked the destruction of the easement of flowage which he had over the plaintiff's land. While a mere non-user of an easement, even for more than 20 years, will not be conclusive evidence of abandonment, such nonuser, united with an adverse use of the servient estate inconsistent with the existence of the easement, will extinguish it. Jennison v. Walker, 11 Gray, 423; Owen v. Field, 102 Mass. 90; Barnes v. Lloyd, 112 Mass. 224; Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544.

The owner of the soil over which the defendant claimed an easement had all the rights and benefits of ownership consistent therewith. was entitled to the herbage growing thereon, and could use it for raising crops or for pasturing his cattle. Perley v. Chandler, 6 Mass. 454; Adams v. Emerson, 6 Pick. 57; Atkins v. Bordman, 2 Metc. 457. To construct such fences as would restrain cattle pasturing thereon, or exclude therefrom cattle straying from other fields, if of the character of ordinary farm fences, would not, certainly when the owner of the easement of flowage was making no use thereof, indicate any intention to use the land in any way inconsistent with the easement. Such fences would readily permit the passage of the water, even if they slightly interfered therewith, and would be, in some cases, necessary to the owner's rightful use of the land. They would not be permanent obstructions, as would be a solid wall prepared so as to exclude water from the owner's premises. This, even if erected while there was no actual user, might furnish just ground of objection, as putting the right to an easement of flowage in danger, in being distinctly adverse to it.

The defendant urges that if the plaintiff had erected these fences while his mill was in operation, and while he was asserting his right of flowage, there could be no dispute as to his right to remove them. We are not prepared to assent to this. Even if such structures would have some tendency to check the flow of water, it might well be contended that such slight obstructions, if necessary to the enjoyment by the plain

tiff of his land for agricultural purposes, could not be held an interference with the defendant's easement. It is enough, however, for the case at bar to say that, while the defendant was not exercising his right of flowage, the plaintiff might properly maintain the ordinary farm fences required for the protection of his land, and the defendant would have no right to interfere with them. Indeed, the very failure to flow might render such fences necessary by withdrawing the barrier afforded by the water. Exceptions overruled.

NOTE.

In discussing the forcible removal of obstructions to an easement, (in this case a right of way,) in Lachman v. Barnett, (Nev.) 3 Pac. Rep. 38, it is held, where a person is in possession of a piece of land over which another person has the easement of a right of way, and the party in possession of the land incloses the same, the owner of the easement, while he has a remedy at law for the obstruction, has no right to enter forcibly to remove such obstruction, and to detain the possession with a strong hand. The court say: "If it be true that the defendants were entitled to unobstructed passage over the land in question, they should have adopted lawful methods for the enforcement of their rights. They were not justified in attempting to obtain them by forcible means. People v. Leonard, 11 Johns. 509; Mitchell v. Davis, 23 Cal. 384; Porter v. Cass, 7 How. Pr. 445; People v. Van Nostrand, 9 Wend. 53; Voll v. Hollis, 60 Cal. 573; Allen v. Tobias, 77 Ill. 171; Krevet v. Meyer, 24 Mo. 110; Harris v. Turner, 46 Mo. 439; Bartlett v. Draper, 23 Mo. 408."

(140 Mass. 202)

KNIEL v. EGLESTON.

Filed October 24, 1885

HUSBAND AND WIFE-CONTRACTS BETWEEN, VOID.

The act of 1874, (chapter 184, § 1; Pub. St. c. 147, § 2,) enabling a married woman to contract in the same manner as if she were a feme sole, does not enable her to contract with her husband, and any personal contract between a husband and wife is absolutely void; and the fact that the wife survives the husband will not render the contract valid and binding on his estate.

Action of contract by the administratrix of the estate of Waitey Ann Noble, against the administrator de bonis non of the estate of Augustus Noble, to recover $1,100 for money lent. In a second count the plaintiff sought to recover the same amount as money had and received by Augustus Noble to the use of Waitey Ann Noble. Upon the reading of the papers in the superior court, and it appearing from the statements of counsel that Augustus Noble and Waitey Ann Noble in their life-time. were husband and wife, and that this suit was brought to recover from the husband's estate the above-named sum of money, which he received from his said wife a few months before his death, upon a promise to return it, or a like sum, to her in a short time, the court, without hearing any evidence in the case, ruled that the action could not be maintained either on the count for money loaned or on the count for money had and received, and rendered judgment for the defendant, it being a jury-waived case. The plaintiff alleged exceptions.

A. M. Copeland, for plaintiff.

II. Fuller, for defendant.

DEVENS, J. We do not perceive how, consistently with well-settled principles, the plaintiff in this case can recover. While by statute the wife may make contracts in the same manner as if she were sole, no authority has been given by which husband and wife may make contracts each with the other. St. 1874, c. 184, § 1; Pub. St. c. 147, § 2. Their legal incapacity thus to contract remains as at common law. At law it has been repeatedly decided in this commonwealth that a promissory note, or any other personal contract between the husband and wife, is absolutely void. Ingham v. White, 4 Allen, 412; Fowle v. Torrey, 135 Mass. 87. A contract with the wife, for payment of money by the husband, is a nullity, and his retention of the money is not a conversion. Bassett v. Bassett, 112 Mass. 99. Even when the wife transferred a promissory note to a third person, which had been made to her by her husband, so that the mere disability to sue, arising out of the marital relation, was removed, such person could not maintain the action. Ingham v. White, ubi supra.

In the case at bar, the fact that the wife survived the husband could not make that a good contract which was originally a nullity. Butler v. Ives, 139 Mass. 202, is quite distinguishable, the contract there considered being valid at its inception. The plaintiff contends that under her declaration, which contained two counts, one for the loan of money and the other for money had and received, the latter permitted the court to deal with the transaction on equitable principles, and that the presiding judge erred in declining to receive evidence as to the transaction. But the presiding judge did not decline to receive evidence. He ruled simply upon the statement of counsel that the husband received the money sued for "a few months before his death upon his promise to return it, or a like sum, to her in a short time." The plaintiff did not express any wish to prove any case under the second count, except as it might be sustained by proof of this statement, which was applicable to each count. By this no evidence was shown upon which any trust could have been raised in the plaintiff's favor, if a trust could properly have been dealt with under the count for money had and received. No property of hers had passed into her husband's hands under any circumstances which would authorize any inference that it was to be held or kept as her separate property. The relation which they had established with each other was that of borrower and lender simply, and the contract they had thus assumed to make was a nullity. Fowle v. Torrey, ubi supra.

It has, indeed, been held that where one renders service or conveys property, as the stipulated consideration of a contract, within the statute of frauds, if the other party refuses to perform, and sets up the statute, the value of such service or property may be recovered. The obligation, which would arise from the receipt or retention of value, to return or pay for the same, is not overridden, because the words of a form of contract which did not bind the party repudiating it were uttered at the time. Bacon v. Parker, 137 Mass. 309. Between parties competent to contract, it is reasonable to infer that the party failing to perform that which he had agreed to do, and yet which he might lawfully do, promised that,

if he availed himself of his right of rescission, he would return that which he received, and that the value received or retained by him was so received only on these terms. In Bacon v. Parker the parties were competent to contract with each other; but the inference that, if one contract was repudiated, another must be inferred, could not arise where parties were not competent to make any contract. Exceptions overruled.

(140 Mass. 337)

(Suffolk, 88.)

MATTEY V. WHITTIER MACH. Co.

Filed November 28, 1885.

NEGLIGENCE-INJURY TO CHILD OF TENDER YEARS-CONTRIBUTORY NEGLI

GENCE.

In an action of tort for personal injuries, the plaintiff, a child of six years of age, while crossing the street in front of an advancing team, stopped, after seeing the wagon, to pick up a bundle which she had dropped upon the pavement, and after hearing a person cry to the driver of the team to stop. Held, that it was a question for the jury whether or not the plaintiff was guilty of contributory negligence, and whether or not she was in the exercise of due

care.

Action of tort for personal injuries, caused by the alleged negligence of defendant's servant. At the trial in the superior court it appeared that the plaintiff was six years and seven months old at the time of the accident. She testified that on the day of the accident she was walking on the righthand sidewalk of Blossom street, in the city of Boston, from the direction of Cambridge street, towards Parkman street; that when she came to the point where Blossom street crosses Parkman street she looked to her right up Parkman street, and saw a wagon of the defendant opposite a stable, and coming down Parkman street on a fast trot; that she had two bundles under her arms; that she then started to go across Parkman street; that when she was about half way across Parkman street she dropped one of her bundles; that she stooped to pick it up, when she heard a woman cry, "Stop, mister! little girl is picking up her parcel;" and that, while she was trying to pick up the bundle, the wagon ran over her, and broke her leg. On cross-examination she testified that, first, she dropped her bundle; then she heard the woman cry out; then she looked, and saw the team coming, still on the trot, and not more than across the court-room,-which it was admitted was 30 feet,-but did not notice how the driver was looking; then she stooped, with her back to the horses, to pick up her bundle, and was run over by the wagon. There was uncontradicted evidence that Parkman street, at this point, was 17.24 feet wide from curb to curb, and was paved with cobble-stones; that the wagon weighed 4,800 pounds; and that said stable was 250 feet off. The driver of the wagon testified, and there was other evidence to the same effect, that he was walking his horses. The defendant asked the judge to rule that there was no evidence on which the jury could find that the plaintiff was in the exercise of due care, and that she was, as a matter of law, guilty of contributory negligence, and could not recover. The court refused so to rule, but left the question of contributory negli