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“The credit which was indorsed upon the note,” it some one; and this whether it was payable to bearer was said in case 5, “is undoubtedly equivalent to an or only to a particular person. The presumption that admission by him that so much as was credited has the payee would not part with his security without been paid, and there is no principle of evidence which having received satisfaction is a reasonable one, and will allow a person after he has admitted a fact, even although these orders are sometime left with the perif the admission is by parol, and not in writing, to do sons to whom they are directed by careless persons, away the force of the admission by an after denial or without payment having been made, yet that somewithdrawal of it. Though it be afterward denied, if it times occurs with receipts which accompany tradeswere by parol only, or if it be in writing, though it be men's bills, and no one would pretend that a receipt afterward erased or obliterated, the admission is ver- attached to a bill would therefore not be competent. ertheless evidence against the persou making it, and There is no necessity that the order should be inis entitled to all the weight of evidence of that sort un- dorsed by the payee, or that it be made payable to til explained away or disproved by bim."

bearer; it is not as evidence of the transfer of the debt, In Louisiana a presumption of payment does not but as extinguishment of it, that possessiou of the paarise from the failure of the claimant to include the per becomes material.” debt in the schedule filed by him on a cession of his In an English case A. brought an action against B. goods when he was ignorant of his rights at the time for money paid out by him in accepting and paying the schedule was made.(6)

bills of exchange for the accommodation of B. The

bills were produced by C. It was held by the chief (B.)

justice that the presumption was that he paid them, 1. A draft payable to his own order drawn by T.on C.

provided it was shown that they were once in circulais found in the possession of C. The presumption is

tion after being accepted.(13) “Show," said Lord Elthat it was paid by C.(7)

lenborough, “that the bills were once in circulation 2. An order for a sum of money drawn on A. by B after being accepted, and I will presume that they got is produced by A. The presumption is that it was paid

back to the acceptor's hands by his having paid them. by A.(8)

But when he merely produces them, how do I know 3. Drafts drawn by B. on A. and accepted by A. in that they were ever in the hands of the payee or any faror of C. are produced by A. The presumption is

indorsee with his name upon them as acceptor? It is tbat A. has paid them.(9)

very possible that when they were left for acceptance This rule was founded on a reasonable principle,

he refused to deliver them back, and having detained which is supported by numerous cases that where bills

them ever since, now produces them as evidence of a of exchange, checks, orders for the payment of money

loan of money." This ruling has been criticised by or goods, promissory notes or other obligations are

our courts. “Undoubtedly,” said Sharswood, J., in a paid, they as a general rule go into the hands of the Pennsylvania case :(14) “ They were no evidence of a person paying them. It is to be presumed, as already loan, but having proved that they were originally lent, said, that a man paying a written obligation will take of which the report does not state that there was any it into his possession.(10)

evidence, why should not the possession of them by · When," said Lord Ellenborough to the jury in an

the acceptor after maturity raise the presumption that old case, “there is a competion of evidence upon the

he had paid them? With the highest respect to so question whether a security has or has not been satis- great au authority upon nisi prius law, I may be alfied by payment, the possession of the cancelled secu- lowed to express a doubt as to the sufficiency of the rity ought to turn the scale in his favor, since in the reason. Contrary to established principle, it presumes ordinary course of dealing the security is given up to

a fraud to have been perpetrated when the natural prethe party who pays it."(11) It has been held that sumption is that which consists with honesty. Bewhere the defense of payment of a note or other se- sides which it assumes that the holder acquiesced in a curity is made, and the evidence on both sides is palpable wrong. If the drawee retains the bill an unevenly balanced, the possession by the plaintiff of the

warrantable time, the holder could sue him in trover uncancelled paper will turn the scale in his fa- It is a reason which applies as well to a bill which had vor.(12)

been negotiated before acceptance; for the indorsee In case 2 it was said: “No argument can be drawn may leave it in the hands of the drawee for acoeptance. either from reason or convenience why possession of

When the bill is presented it is reasonable that the an order by the person on whom it was drawn should

drawee should be allowed some time to deliberate not prima facie be evidence of his having paid it to whether he will accept or not. It seems that he may

demand twenty-four hours for this purpose, and that (6) Tremoulet v. Cenas, 6 Mart. (N. S.) 541; 17 Am. Dec. 195 the holder will be justified in leaving the bill with him (1828)

for this period. So that even an indorsed bill pro(7) Connelly v. McKean, 64 Penn. St. 113 (1870); Birkey y. duced by the acceptor after maturity would not be McMakin, id. 343 (1870).

evidence of payment if this is a sound reason. But (8) Zeigler v. Gray, 12 S. & R. 42 (1824).

surely indorsed bills, checks or orders for the payment (9) Hays v. Samuels, 55 Tex, 560 (1881). The presumption is of money are prima facie evidence according to the that a man paying a note will take it into his possession. Hay- | general current of the authorities.” wood v. Lewis, 65 Ga. 224 (1880), and it is presumed that the

(C.) payment was made to the person entitled to receive the

1. A. is sued on a note made by A. to the plaintiff's money. Lipscomb v. De Lemon, 68 Ala. 592 (1881); Potts v.

intestate. A. produces the note with his name canColeman, 67 id. 221 (1880).

celled. The presumption is that the note is paid.(15) (10) Mills v. Hyde, 19 Vt. 59 (1846); Garloch v. Geortner, 7

2. A note made payable to A. was sued on by his Wend. 198 (1831); Weidner v. Schweigart, 9 S. & R. 385 (1823);

representatives after his death. When produced in Rubey v. Culbertson, 35 Iowa, 264 (1872); Somervail v. Gillies,

evidence the note had two lines drawn through its 31 Wis. 152 (1872); Penn v. Edwards, 50 Ala. 63 (1873); Lane v.

face. The presumption was that it had been paid. (16) Farmer, 13 Ark. 64 (1852); Edwards v. Campbell, 23 Barb. 423 (1856); Bedell v. Carll, 33 N. Y. 581 (1865); Union Canal Co. v.

(13) Pful v. Vanbatenberg, 2 Camp. 439 (1810); and see SchoLloyd, 4 W. & S. 393 (1842); Carroll v. Bowie, 2 H. & McC. 457

ley v. Walsby, Peake, 25 (1820). (1848).

(14) Conelly v. McKean, 64 Penn. St. 118 (1870). (11) Brembridge v. Osborne, 1 Stark, 374 (1816).

(15) Gray v. Gray, 2 Lans. 173 (1869). (12) Doty v. Janes, 28 Wis. 319 (1871).

(16) Pitcher v. Patrick, 1 Stew. & P. 478 (1832).

*

*

In case 1 it is said: “ Pothier, in his work on Obliga- 2. A. sued B. for money alleged by him to have been tions, says that "it ought to be decided generally from loaned to B.. A. testified: “B. requested me to the possession of the debtor that the creditor shall be send him $18; I sent it and he has not paid me the presumed to have given up the security, either as ac- same or any part of it." There was no other eriquitted or released, until the creditor shows the con- dence. The presumption was that the money was due trary; as for instance, that it was taken surrepti- to B.(22) tiously.” He says further: “There is sufficient “There is not principle better settled," is was said in ground to presume a donation and release of the debt case 1, "than that where one pays money to another, when its debtor gives up the security, and the circum- in the absence of explanation as to the cause of paystance of its being in the possession of the debtor is a ment, the presumption is that it was paid because it sufficient reason for presuming that the creditor has was due, and not by way of a loan. The plaintiff given it up; as that is the most natural way of the pos- proved nothing more than he would have proved by session passing from one to the other.

the production of a draft drawn by the defendant on If a promissory note or bond should chance to be found him, and proving that he, the plaintiff, bad paid the in the hands of the debtor, or if it be crossed, razed or draft. On such evidence he could not recover against torn in pieces, either of these circumstances will create the drawer of the draft. Prima facie, the acceptor and a presumption that it has been acquitted, which pre- payer of the draft is the party primarily liable. It is sumption will remain until clear proof be brought that presumptively drawn against funds in the bands of the the debt is still owing; as that the appearance came by drawee. * The case is destitute of any circumviolence or accident."

stance which can warrant the inference that the money In this case both circumstances concur. The note is was advanced as a loan, unless the mere fact of the found in the hands of the maker, and it is cancelled by payment of money by one party at the request of the removal of the maker's name. These circum- another is to be considered as furnishing legal evistances could not lawfully exist without the act or dence, that the money was advanced as a loan. This consent of the holder of the note, and that they oc- cannot be held without overturning well sustained curred unlawfully will certainly not be presumed. rules."

In case 2 it was said: “If at any time before a final trial the note or bond upon which the action has been

(F.) brought undergo any alteration or receive any im

1. A brickmaker sued an architect for work and pression indicating its destruction or satisfaction, it labor performed two years before bringing the action. would appear to be but a necessary and reasonable re- It was the custom to pay the workmen every Saturquisition on the plaintiff that he should afford the ex- day night, and the plaintiff with the others had been planation. If the act done was the result of mistake seen waiting to receive his wages. The presumption or accident, or if any effect was designed by it differ- was that the workman had been paid. (23) ont from its ordinary import he alone must be pre- 2. A remittance by mail is a presumption of pay. sumed to know the circumstances and to possess the ment where the debtor has been requested by the means of explanation."

creditor to remit in this way or it is the course of busi(D.)

ness.(25) 1. A receipt of the payment of a quarters' rent is pro- In a case like case 1, Gaselee, J., said: “In the duced. The presumption is that all former rent is regular course, if a servant has left a considerable paid. (17)

time, the presumption is that all the wages have been 2. A tax assessed against E. for the year 1834 is not paid, and that makes it proper to consider whether, in included in the bill for 1835. The presumption is that this case, the facts proved rebut that presumption. In it is paid.(18)

a case tried a few years ago at Guild Hall, which was 3. The question is whether A. has paid a State tax an action by a workman at a sugar refinery, a witness assessed upon his lands for the year 1842. The taxes as- proved that the plaintiff had worked there for more sessed on the same land are proved to have been paid than two years. But Abbott, C. J., said, that he by A. for subsequent years. The presumption is that should direot the jury to presume that men employed the tax for 1842 is paid. (19)

in that way were regularly paid every Saturday night, As said in another case like case 1, this presumption unless some evidence was given on the part of the arises from the improbability that the former rent re- plaintiff to satisfy the jury that the plaintiff had in mained unpaid when rent is specifically received for a point of fact never been paid; and as no such evisubsequent period. This presumption obtains as well dence was produced the plaintiff was nonsuited." where several persons are entitled to receive money, as in an individual case, for they are all to be pre

(G.) sumed conusant of their rights. This presumption

1. A. sued B. for the price of eleven hogs sold by A. may be repelled, but standing ancontradicted it is decisive.(20)

to B. B. pleaded payment. It was proved that A. (E.)

went to B.'s house to settle for the bogs, that he had 1. It is proved that on January 1, 1880, B. borrowed

po money when he went iu but had when he came out, a certain sum of inonoy from A. It is also proved (22) Sayles v. Olmstead, 66 Barb. 590 (1873). that on a subsequent day an unascertained sum of (23) Lucas v. Novisdienski, 1 Esp. 296 (1795). The words money passed from B. to A. The presumption is that terms cash on an unreceipted bill of goods sent by a wholeA. was paid his debt.(21)

sale to a retail dealer raise no presumption of law that the (17) Brewer v. Knapp, 1 Pick. 337 (1823); Crompton v. Pratt,

goods were paid for before they were shipped. Wellauer v. 105 Mass. 255 (1870).

Fellows, 48 Wis. 105 (1879). (18) Attleborough v. Middleborough, 10 Pick. 378 (1830); and (24) Boyd v. Reed, 6 Heisk. 631 (1871). see Robbins v. Townsend, 20 id. 345 (1838).

(25) Whistler v. Drake, 35 Iowa, 103 (1872). For other cases (19) Hodgdon v. Wright, 36 Me. 337 (1853).

in which payment has been inferred from circumstances see (20) Decker v. Livingston, 15 Johns. 479 (1818); and see Wal- Connecticut Trust Co.v. Melandy, 119 Mass. 450 (1876); Alvord ton v. Eldridge, 1 Allen, 203 (1861).

v. Baker, 9 Wend. 323 (1832); Risher v. The Frolic, 1 Woods, (21) Swain v. Ettling, 32 Penn. St. 486 (1459). When absence 92. Whether the taking of a negotiable note for a pre-existof other dealing is shown, proof of money paid by maker of ing debt is a payment of that debt is a question on which the payee would raise presumption that it was paid on the note. authorities are in conflict. See Strang v. Hirst, 61 Me. 9 (1871), Somervail v. Gillies, 31 Wis. 152 (1872).

where the cases on both sides are reviewed.

which money he stated he had received of B. The pre- In case 1 it was said: “It has been earnestly consumption is that A. was paid.(26)

tended that the facts furnished a legal ground on In case 1 it was said: “If he had no money, went which the jury might have presumed that the defendto defendant to settle for the hogs and when he left ant had paid or accounted to the heirs of the intestate them had money, and said he got it from them, it for the amount of the notes without the formality of needs no argument to show that it is legitimate to pre- any proceeding in the Probate Court by way of a setsume, or at least the jury may presume therefrom, that tled account and a decree thereon, and that the judge he did settle and get his pay.”.

should have left this question to the jury. The obvi

ous reply to this objection and argument, is that the RULE VI. The presumption in Rule 5 (B. and C.) law does not presume that an administrator does does not arise, where the debtor had the means of obtain- wrong; it does not presume that the defendant did ing possession of or of cancelling the obligation other what by law he had no right to do, that is that he had than by paying it, (h) nor in D. and E. where the debt made an unauthorized payment to the heirs under the paid was not the debtor's alone. (;)

circumstances mentioned. He was bound to account

to the judge of Probate, and he had no right to pay ILLUSTRATIONS.

the heirs but under decree. To presume it would be (H.)

to presume against law and right. We do not mean 1. A father held the note of his son for $425. On the to to say that had there been proof that the amount of father's death his representatives sued on the note; the notes had been actually apportioned, and paid to but the son produced it cancelled. It appeared that the several heirs, though without a decree of the Prohe bad the means of access to his father's papers. bate Court, it might not, in a hearing in chancery, be There was no presumption that the note had been a bar to an execution for any thing beyond nominal paid.(27)

damages. It would be as strange to sanction the preIn case 1 it was said: “Is the production of this sumption where mentioned as that which was relied note by the defendant, under the facts of this case, upon in another part of the argument to prove that evidence of its discharge when it is proved not to have

the intestate had forgiven the debt due on the notes. been paid or satisfied. I think it is not. Pothier (Ob- Wrongs and gifts are not to be presumed; they must ligations 73) says, that Boiseau holds that possession be proved." of the note affords a presumption of its payment; but

JOHN D. LAWSON.

St. Louis, Mo. if he allege a release he must prove it; for a release is a donation and a donation ought not to be presumed. Pothier differs and thinks it should be presumed un- RAILROAD ACCUMULATING SURFACE WATERless the creditor shows the contrary. But Pothier

DAMAGES. agrees with Boiseau, that if the debtor was the general agent or clerk of the creditor having access to his SUPREME COURT OF IOWA, APRIL 23, 1884.* papers, possession alone might not be a sufficient presumption of payment or release--so if he was a neigh

DRAKE V. CHICAGO, R. I. & P. R. Co. bor into whose house the effects of the creditor had Where a railroad company has an easement to run its cars been removed on account of a fire. The latter proposi

over a track constructed through a subservient estate, lion seems applicable to this case. Here the case

where the effect of the construction of an embankment shows without contradiction that the defendant liv

would be to obstruct the passage of surface water and

damage the surrounding estate, but sufficient drainage ing at home with his father had a key that fitted his

can be secured by the construction of a ditch or culvert, father's desk where this note was kept.

it will not be presumed that the company, when purchas(J.)

ing the right of way, was desirous of paying for the right

to obstruct the water; and if they did not pay for this 1. A. was indebted to B. on a note made by himself right their use of the easement binds them to furnish the and others. After the maturity of the note A. ren- proper drainage. An instruction that they must construct dered services to B. who paid him money therefor. In their embankment so as to furnish this drainage is cor

rect. a suit on the note by B. there is no presumption that A. had paid it.(28)

Where a person discovers that he is maintaining a nuisance, In case 1 it was said, that as all the parties to the

and abates it, but suffers it to arise again, he is liable,

without notice, although the nuisance was created originote were joint makers and equally bound, there nally by his grantor. could be no presumption that A. settled what was not When, since a cause of action accrued, the statute of limitaexclusively his own debt.

tions has run, but damage has continued to be done within

the time provided by statute, the action is not barred. ROLE VII. The presumption of payment is stronger

Powers v. Council Bluff8, 45 Iowa, 652, distinguished. than the presumption of continuance, but weaker than

Where ungrown crops are destroyed by being flooded, a calthe presumption of innocence.

culation of what the crops would have been worth, based

upon the value and quantity of other crops, is improper ILLUSTRATIONS.

evidence, and should be excluded. i. An action is brought on an administrator's bond to compel him to account for and pay over the amount of a private debt due from him to the intestate. Action to recover for damages alleged to have been Twenty-four years have elapsed since the bond was sustained by reason of the accumulation of water on given. There is no proof of a degree of distribution the plaintiff's land, caused by the construction of the ordering him to pay to the heirs. Therefore the pre- defendant's embankment without the construction sumption of payment and the presumption of inno- and maintenance of proper ditches and culverts. cence (arising from the fact that he would have vio- There was a trial to a jury, and verdict and judgment lated his duty in paying without a decree) conflict, and were rendered for the plaintiff. The defendant ap-. the latter must prevail.

peals. (28) Grey v. Grey, 47 N. Y. 552 (1872); Kenney v. Public

M. A. Low, for appellant. Admr., 2 Brade. 319 (1853).

H. B. Hendershot and Sloan, Work & Brown, for ap(27) Mechanics' Bank v. Wright, 53 Mo. 153 (1873).

pellee. (28) Potter v. Titcomb, 7 Me. 302 (1831).

*19 N. W. Rep. 215.

APPEAL from Van Buren District Court.

ADAMS, J. The road was constructed in 1870 by the road Co., 67 Me. 353; Lynch v. Mayor, 76 N. Y. 69; 32 Chicago & Southwestern Railroad Company. The de- Am. Rep. 271; Taylor v. Fickas, 64 Ind. 167; 31 Am. fendant in 1872 succeeded to the rights of that com- Rep. 114; Gibbs v. Williams, 25 Kan. 214; Grant T, pany. At the time the road was constructed the land Allen, 41 Conn. 156. in question was owned by the plaintiff's grantor. The As holding a different doctrine, the plaintiff cites plaintiff became the owner in 1874. From the time of Ogburn v. Connor, 46 Cal. 346 ; 13 Am. Rep. 213; Foothe construction of the road in 1870 to 1876 no damage tle v. Clifton, 22 Ohio St. 247; Parter v. Durham, 74 N. appears to have resulted to the land in question. In c. 769; Gillham v. Madison Co. R. Co., 49 m. 484; the latter year the plaintiff began to complain. Soon Gormley v. Sanford, 52 Ill. 158; Livingston v. McDonafterward the defendant constructed a ditch along its ald, 21 Iowa, 160; Cornish v. C., B. & Q. R. Co., 49 id. right of way from the plaintiff's land to an opening in 378; Van Oredol v. B., C. R. & N. R. Co., 56 id. 470; 9 the road where the same was constructed upon trestle N. W, Rep. 379. work. This ditch was reasonably successful as a drain In the case last cited the court held that a railroad until 1880, when it became obstructed by accumulated company could not be allowed to obstruct a natural dirt and other matter, and while the defendant made channel of water. In Livingston v. McDonald the some effort to remove the obstructions, they were not court held that the owner of the higher land could not in fact sufficiently removed, and during the cropping be allowed to collect water and precipitate it in inseasons of 1880 and 1881 water accumulated upon the creased quantities to the land below, to the injury of plaintiff's land, being prevented primarily by the em- such land. The question as to whether a land owner bankment from escaping, and not afforded a sufficient can be allowed, by changing the surface of his land, or outlet by the ditch. Certain crops were destroyed, erecting improvements thereon, to prevent the escape and a portion of the land was rendered wholly untilla. of surface water from adjacent laud, where the same ble. The defendant contends that it did not become did not flow through any channel, has never been deliable for any damages, and that if it did this action is termined by this court; and we have to say that it apbarred by the statute of limitations; and furthermore pears to us that such question does not necessarily that the court mistook the proper means of damages arise in the case at bar. The cases cited arose between and allowed improper evidence to be introduced. adjacent owners.

1. The first question which represents itself as to There is no evidence that the defendant owns the whether the defendant owed the plaintiff any duty in land which it occupies with its road. Its right was respect to the surface water. The court below thought probably that of an easement. It is not claimed by that it did. It gave an instruction in these words: the plaintiff that the defendant is a mere trespasser, “In my judgment the railroad company is under legal and in the absence of any averment or evidence to obligations in constructing its railroad through the that effect we could not assume that it is. The parties country, in crossing farms and land generally, to so have proceeded upon the theory that defendant's occonstruct its embaukment as not to flow surface water cupancy is rightful. In the absence then of evidence back from the land through which it passes. I do not as to the extent of defendant's right in the premises, think that the common law, with reference to the we may assume that it is sufficient to make its occuright of owners of town lots or other lands to fight sur- pancy rightful, and we cannot assume more. We may face water from them, can justly be made to apply to proceed then upon the theory that the defendant has railroad companies."

an easement. The plaiutiff's testimony shows that The general doctrine relied upon by the defendant the railroad crosses his land, and we find no evidence to the effect that every land-owner has the right to ex- to the contrary. clude surface water from his premises was fully recog- The defendant's estate then appears not only to be nized in O'Connor v. Fon du Lac, A. & P. Ry. Co., 52 an easement, but it is one to which the plaintiff's es. Wis. 526; 38 Am. Rep. 754; 9 N. W. Rep. 287, and held tate is the subject or servient estate. The easement, to apply even to railroad companies. The court in we may assume, was acquired by proceedings for conthat case said: “The company has only obstructed a demnation under the statute, or by purchase, and it ditch which drained or carried off surface water from matters not which. The important question is as to the plaintiff's premises. We do not think that the de- what the defendant or its grantor, the original owner fendant was bound to keep that ditoh open on its own of the easement, must be presumed to have paid for. land for the convenience of the plaintiff. In other In Stodghill v. C., B. & Q. R. Co., 43 Iowa, 26, it was words, the owner of land is under no legal obligations held that the defendant paid for what the commisto provide a way for escape of mere surface water com- sioners should properly have considered in their estiing on to his land from the land of his neighbor, but mate, and among the things was not included the right has the right to change the surface so as to interfere to divert a natural stream of water. On the other with or obstruct the flow of such water."

hand it is to be observed that in Sabin v. Vermont In Gannon v. Hargadon, 10 Allen, 109, a case between Cent. R. Co., 25 Vt. 363, it was held that the right-ofadjacent land-owners, the court said: “The right of way damages covered the right to cast rock on the adthe owner of land to improve and occupy it in such jacent premises by blasting, so far as was necessary in manner and for such purposes as he may see fit, either the construction of the road. The draining of wells by changing the surface or the erection of buildings or and the diversion of water courses, it is said, are corother structures thereon, is not restricted or modified ered by the right-of-way damages where the same are by the fact that his land is so situated with reference necessary in the construction of the road. Prop'rs of to that of adjoining owners that an alteration in the Locks and Canals v. Railroad Co., 10 Cush. 485. If we mode of its improvement or occupation in any portion could suppose a case where the construction of a railof it will cause water which may accumulate thereon road would necessarily interfere with the flow of surby rains and shows falling on its surface or flowing on face-water, and cause it to accumulate and stand on it over the surface of adjacent lots, either to stand in the land from which the right of way is taken, the inunusual quantities on other adjacent lands or pass jury that would accrue therefrom should, we think, be into and over the same in greater quantities or in other considered by the commissioners, and embraced in directions than they were accustomed to flow." See their appraisement of right-of-way damages. The also in this connection Parks v. Newburyport, 10 Gray, land-owner is entitled to be paid, not merely the value 28; Wilson v. Mayor, etc,, 1 Den. 595; Cairo R. Co. v. of the land taken, but for all incidental injuries which Stevens, 73 Ind. 278; 38 Am. Rep. 139; Barkley v. Wil- must necessarily result from the proper construction co., 86 N. Y. 140; 40 Am. Rep. 519; Morrison v. Rail- and maintenance of the road. Kucheman v. C., C. &

D. Ry. Co., 46 Iowa, 466; Imlay v. Railroad Co., 26 garded as being received at one time, and that being Conn. 249.

more than five years before the commencement of the But the undisputed evidence in the case at bar shows action, it was held to be barred. But the injury in that that the drainage of the surface water from the plain- case was of such a character that it was beyond the tiff's premises was easily maintainable by the con- city's power to remedy it. The remedy to be applied, struction and maintenance of a ditch along the de- if any, was by the construction of a wall on the plaintfendant's right of way to its trestle work. The case iff's premises where the city had no right to go. The is not different from what it would have been if the remedy in the case at bar is to be applied on the dedefendant could have effected the drainage by the fendant's premises, and that too in the discharge of a construction and maintenance of one or more culverts. subsisting obligation. The case falls under McConnell Where the effect of a mere embankment would be to v. Kibbe, 29 111. 483, and Bowyer v. Cook, 4 Man., Gr. & obstruct the passage of surface water and cause damage S. 236. In our opinion the plaintiff's action is not to the premises from which the right of way is taken, but barred. sufficient drainage can be easily secured by a ditch or 4. The plaintiff was allowed, against the objection of culvert, it appears to us that when the company ap- the defendant, to testify in substance that the land in plies for a right of way it could not be presumed to be question would, if it had not been flooded, bave prodesirous of securing and paying for the privilege of duced as much corn as he raised in other land, and obstructing the passage of the water. Such being our that he guessed that it would have produced from 40 view, we could not say that the right to obstruct the to 50 bushels per acre, and that the corn would have passage of the water was included in the right-of-way been worth $15 per acre. It is not usual, we think, damages. The owner then of the premises from which where ungrown crops are destroyed by being flooded, the right of way was taken was paid, as we must pre- to allow witnesses to go into a definite calculation of sume, upon the theory that the company preferred to what the crops would have been wortb, based upon protect him against this incidental injury. The very evidence as to the quantity and value of other crops. enjoyment of the easement therefore carried with it All calculations which embrace speculative profits day by day the obligation to furnish this protection. should, as far as the nature of the case will allow, be Possibly this would not be so it the evidence showed carefully excluded. Ungrown crops are a part of the or we could assume that the company acquired the realty. The injury done is to be deemed an injury to fee-simple title to the land which it occupies. With- the realty. The question is as to how much the premout committing ourselves to an approval of the in-ises were diminished in value. struction as a general and unqualified proposition, we In Chase v. N. Y. Cent. R. Co., 24 Barb. 273, an achave to say, that as applied to the facts of this case, it tion for damages sustained by reason of an overflow of appears to us to be correct.

water upon the plaintiff's premises, caused by the de2. It is not shown that the plaintiff expressly noti- fendant's embankment, it was held that the jury was fied the defendant of the effect upon his land of the correctly instructed that the measure of the plaintiff's construction of the embankment without suitable damages was the difference between the value of the drainage. The defendant insists that inasmuch as the plaintiff's premises immediately before the injury bapembankment was not constructed by itself, but by its pened, and the value of the same immediately after. grantor, it did not become liable in the absence of no- Substantially the same rule was held in Easterbrook v. tice. It cites and relies upon Slight v.Gutzlaff,35 Wis.675; Erie Ry. Co., 51 Barb. 94. Where the flooded prem17 Am.Rep. 476. In that case Ryan, C. J., says: “When a ises are covered by an ungrown crop their value she id lessee or grantee continues a nuisance of the nature not of course be estimated with reference to the crop. But essentially unlawful,erected by his lessor or grantor, he then the estimate should be made with reference to is liable to action for it only after notice to reform or the crop at the time of the injury. In the case at bar abate it;” citing McDonald v. Gilman, 3 Allen, 264; the flood occurred in the early part of the season, when Johnson v. Leucis, 13 Conn. 307; and several other the corn was for the most part about a foot high. The cases. See also in this connection the late case of premises were enhanced in value much or little by the State v. Robinson, 52 Iowa, 228; 2 N. W. Rep. 1104. crop, according to its condition and prospects. But But the case at bar, it appears to us, is distinguishable. whatever its condition and prospects might have been, The defendant seems to have become aware of the ef- it, like all other ungrown crops, was exposed to adfect of the embankment in preventing the escape of verse contingencies, and its value could not, we think, surface-water from the plaintiff's land, and actually properly be estimated upon the basis of the proven abated the nuisance, but afterward suffered a nuisance value of some other crop which matured, because the to arise again by suffering the ditch to become ob- very fact that it was exposed, and was involved in more structed. We have discovered no decision or principle or less uncertainty, detracted from its value as it stood upon which we could hold that the defendant was en- at the time of the injury, and we are confined in our titled to notice.

estimate to that time. 3. We have next to consider whether the plaintiff's In other respects also we think that the evidence adclaim is barred by the statute of limitations. The first mitted was unreliable. It appears from the evidence injury was sustained in 1876. This action was brought that the corn which was destroyed was upon low in 1882, more than five years thereafter. Without ground. The neighboring fields of corn which maquestion, an action for the injury sustained in 1876 tured must, we think, have been upon higher ground. would be barred, but the plaintiff makes no claim for Now if the season was already wet, as we infer, at the that injury. The defendant's position however is that time of the injury, it seems to us that the comparison the moment the plaintiff's land was overflowed he bad sought to be made was an unsafe one, and that the a right, if the circumstances were such as to give him evidence should have been excluded. It was proper to a right of action, to maintain an action once for all show any fact or circumstance pertaining to the conupon the theory that no protection would be fur. dition and prospects of the crop, so far as the same nished him, and that his damages would be measured were discoverable at the time of the injury, beby the diminution of the value of his premises by the cause such facts and circumstances affected the value construction of the road in the manner in which it of the premises at that time. The jury was entitled was, without ditch or culvert then or thereafter to be to consider whatever it may be presumed would have furnished. He relies upon Powers v. Council Bluffs, been considered by a careful person desiring to buy. 45 Iowa, 652. In that case the whole injury was re- Looking at the premises in this way, as they were im

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