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words without trimming; Mr. Webster plucked under their feet. After much effort one becomes away his flowers of speech whose bloom and fra- weary and turns back; the other pushes on and grance pleased him less than when first used.


reaches the top. The rising sun illumines the sumtoo Mr. Webster tormented proof-readers and print- mit, chases the shadows from the valleys, and ers who had the misfortune to be engaged in put-gradually takes possession of the earth. He sits ting his speeches in print; at times changing the bathed in a flood of glory never before conceived; words and forms of expression which had been never to be forgotten." used in deliberately prepared orations. But it is A lawyer of genius and culture, much given to said that Mr. Choate, never at a loss for the word, public speaking, generally has a style of his own; could express clearly the very things he wished to the thoughts and the dress of corresponding wealth say, and leave his words to be printed as they fell and variety. It was pre-eminently so with Rufus from his lips. He was so consistent in this habit Choate. As to the adverse criticism which falls to that Judge Fancher could not induce him to correct the lot of such men Judge Neilson declares: the stenographer's report of one of his greatest ar- “Those who condemn what they cannot emulate guments. The author thinks that " as

deserve little attention." He is however disturbed quence, it may be said that he who would know by the blunders of a friendly biographer. Thus these authors from their printed pages should re- the esteemed author of the “Memoirs" says that member that while one of them appears as in state

“Mr. Choate created a taste for his peculiar style," dress, every part carefully arranged, the other ap- and the judge answers: pears in the unstudied dress of every-day life.” “That taste must have been of sudden growth.

Judge Neilson has some prudent suggestions as His first juries understood him, his early trials, trito classical studies. The subject could not well be umphs; and the people, when he appeared before avoided, as such studies were part of Mr. Choate's great assemblies a stranger, hung upon his lips daily life, and modified his character. Then too, with breathless interest." Again when it is said, as if his devotion vas foolish, it had been said that in substance, that Mr. Choate was conscious that such studies were unprofitable; the lessons learned his style was not suitable for an author, we are told: soon forgotten. In the brief space which he could “Mr. Choate could say what he would, in whatever give Judge Neilson shows the use and value of such style he would, with ease and certainty. He writes studies. He reminds us however that some schol- and speaks as one thoughtless of mere style, and ars of great mental powers had suffered from the there seems to be almost no limit to the variety of study of the ancient classics, and points out the tone and expression.” distinction that should be observed in respect to After what we have years ago written of Mr. students. He would not have them come out of Choate we need not say that we accept, and sympacollege ignorant of every thing but Latin and Greek, thize with the views of the author. or unduly neglect such studies, or take them up It was wise to give, as have been given, some with a slothful or indifferent spirit. He says: portions of Mr. Choate's writings and speeches.

“It is obviously unjust, it is bad economy, to The reader may have a vivid and refreshing sense prescribe such tasks for a student without regard of the grace, beauty, clearness, simplicity and to his taste, or to the course of life he is to pursue. power of his English. Whatever his calling is to be he must study his The sixth chapter will be of great value to stuown language closely, critically, profoundly, and dents. The question as to the Anglo-Saxon elebe conversant with the best authors in it. Es- ment of the English language received some attenpecially must he study the Bible daily, and culti- tion from Sharon Turner and George P. Marsh on vate a love for its words and style. He may thus a narrow basis, and more at large from Doctor become a good English scholar. He must master Weiss, In this instance the author took up the many subjects of practical importance also, and in question with especial reference to the vocabulary the history, life and contentions of the world be of Rufus Choate, and the number of unrepeated well informed. In all this he will be following words used by him, as printed, is given. Happily Mr. Choate's example. But he who looks forward the work was extended. The percentage of words to a life of literary leisure, and to the highest intel- of Anglo-Saxon, Greek and Latin derivation in our lectual enjoyments attainable, or aspires to one of language, as used in special efforts by twenty disthe learned professions, must take up the ancient tinguished American and British authors, as well classics. Such studies however are to be vigor- as by Mr. Choate, have been ascertained, and the ously pursued. In its early stages the work is dif- results put in tabular forms. This work has been ficult and full of discouragements. Only after faithfully performed, and is more clear and satismuch devotion, after he has passed the region of factory than any other work of the kind with which toil and pain, does the student enter into the spirit we are acquainted. of the language, and take delight in the literature. The author and the old friends of Mr. Choate, Of that delight he who abandons the study early working in concert, have done such full and exact feels and knows nothing. It is as when two trav- justice to their subject that the critic will find no ellers attempt to climb a mountain. In the morn- occasion to add to or to abate from the analysis. ing mist they see only the steep and stony path The special information given by Edward Ellerton



Pratt, Mr. Choate's son-in-law, and sprinkled tain; some of the witnesses saying it was close to the through these pages, is of great value and interest. wall of the excavation, while others state it was three

feet away. We regard the book as a permanent and valuable

A temporary sidewalk from three to four

feet in width was constructed around this excavation, contribution to biographical literature.

laid on two by four inch scantling, and the fenceposts were nailed to the south side of the tem porary

walk. The St. Charles Hotel was immediately west of MUNICIPAL CORPORATIONS - EXCAVATION IN

the excavation in question, and the fence around it

commenced on the east side at the hotel. There was STREET-CONTRIBUTORY NEGLIGENCE.

a dim light in front of the hotel, apparently at the

outer edge of the sidewalk, showing the name of the SUPREME COURT OF NEBRASKA, JULY 1, 1884.

hotel. ( street is one of the public streets of Lincolo;

the Union Pacifio depot being located at the foot of CITY OF LINCOLN V. WALKER.*

the street, and there being a very large number of A person travelling on a public street, if he exercises ordi- persons passing and repassing along said street. That nary care, has a right to be absolutely safe against all

on the twenty-fourth of November, 1881, the plaintiff accidents arising from obstructions or imperfections in

below, being a stranger in Lincoln, left the Oriental the street. And if a person is authorized to make an ex

Hotel in said city about 7 o'clock in the evening, to go cavation in the street, he is bound at his peril to protect

to the Union Pacific depot. On inquiring the way, he the same and leave the street in as safe a condition as it

was directed to go north to ( street, thence west along would be if the excavation had not been made.

said street to the depot. The night seems to have In an action of negligence, where the plaintiff can prove his

been very dark; and the plaintiff not knowing of the case without disclosing any negligence on his part, con

obstruction in question, while a short distance east of tributory negligence is a matter of defense, the burden of the same, two men passed on to the sidewalk about proving it being on the defendant.

forty feet in front of him, going in the same direction RROR from Lancaster county.

that he was, and supposing them to be more familiar with the street than he was, he followed them, being

guided by their voices. As the two persous named A. C. Ricketts and Mason & Whedon, for plaintiff. came in front of the St. Charles Hotel, he observed Lamb, Billingsley & Lambertson, for defendant.

that they passed between the light in front of the

hotel; and that building being considerably to his left, MAXWELL, J. This action was brought by the de

and he believing that he was too far into the street, fondant in error against the city of Lincoln to recover

stepped to the left, and fell into the excavation in damages alleged to have been sustained by him from

question, a depth of seven feet three inches, and susfalling into an excavation on ( street, in front of

tained serious injuries, by which he was rendered inblock 52, whereby he sustained damages to the amount

capable of performing any labor for a number of of $3,000. The answer is that said plaintiff well knew

months. The verdict is not too large if the city is of said excavation; that it was well protected by liable. guards placed over and across the sidewalks where they

The attorneys for the city asked the following in. approached said excavation; that the street lamp of

struction, which was refused: “The jury is instructed the St. Charles Hotel lighted up the same, and would

that before the plaintiff can recover in this action, it is have enabled the most casual observer to see the pa

incumbent upon him to show that no negligence of his ture and extent of the excavation; that the injury was

contributed to the injury, damages for which are occasioned wholly by the plaintiff's negligence, etc.

claimed herein, and that upon the plaintiff rests the The jury returned a verdict in favor of the plaintiff

burden of proof of the absence of such contributory below for the sum of $1,200. The city filed a motion

negligence." There is no uniform rule established in for a new trial, in which are 41 assignments of error.

regard to the party upon whom rests the burden of The motion was overruled and judgment rendered on

proof of contributory negligence. In some of the the verdict, but taxing the costs to each party.

States it is held that where the plaintiff can prove his The errors relied upon are to the giving and refus

case without showing contributory negligence, the ing certain instructions. The testimony tends to

burden is on the defendant. In others that the plaintshow that at the time the accident occurred a large

iff's case is not presumed, and he must disprove conbrick building was being constructed on the north

tributory negligence. In some of the cases it is held east corner of block 52, fronting on Eighth and O

that there is no presumption as to care or the want of it streets; that an excavation of the same depth as the

and that if the facts show a duty of care, the plaintiff cellar extended into 0 street from twelve to

must give some evidence that he exercised it; otherfifteen feet, and from fifty to sixty-five feet in

wise not. The question is presented to this court for length; that this excavation was walled up a little

the first time. above the surface of the ground, being about four

In Randall v. N. W. Tel. Co., 54 Wis. 147; S. C., 41 inches above at the north-east corner, and nineteen at

Am. Rep. 17, it was held that contributory negligence the north-west; that as this excavation extended

was purely matter of defense, citing Railroad Co. v. across the sidewalk, a temporary fence was erected

Hunter, 11 Wis. 160; Hoyt v. Hudson, 41 id. 105; 22 across the sidewalk on the east and west sides by Dail

Am. Rep. 714; Prideaux v. Mineral Point, 43 Wis. 524; ing up two six or eight inch boards at each of said

S. C., 28 Am. Rep. 558; Bessex v. Railroad Co., 45 Wis. places; that a similar fence was constructed on the

477. And this seems to be the rule of the United north side of the posts, consisting of two by four

States courts. Railroad Co. v. Gladmone, 15 Wall. 401; scantling five feet in length, driven into the ground

Railroad Co. v. Horst, 93 U. S. 291. See also Kelley v. about eighteen inches, and two six or eight inch boards nailed on to these posts. There were two open

C. & N. W. R. Co., 19 N. W. Rep. 521.

The New York rule seems to be that if the evidence ings left for carrying material into the building, one

shows the plaintiff's presence or conduct, or that of being near the north east corner, and the other near the north-west corner. It is claimed that these open

his servant or agent, to have been involved in the disings were closed at night, but this is denied. The dis.

aster, or its causes, then he must disprove contributance this fence was from the excavation is not cer.

tory negligence. Abb. Tr. Ev. 596. See the New York

cases cited in 18 Alb. L. J. 144, 164, 184. And this rule is *8. O., 20 N. W. Rep. 113.

recognized in Massachusetts. Parker V. Lowell, il

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To warrant a trial court to set aside a verdict for excessive

damages, the damages must be not merely more than the court would have awarded had it tried the case, but they must (especially in an action for defamation), so greatly and grossly exceed what would be adequate in the judge ment of the court, that they cannot reasonably be accounted for, except upon the theory that they were awarded, not in a judicial frame of mind, but under the influence of passion- of excited feeling rather than of sober judgment, or of prejudice and a state of mind par

tial to the successful party, or unfair to the other. Defamatory words, falsely spoken or written of one in his

profession, are actionable per se; and prejudice to the person defamed thereby, and malice on the part of the defamer, are implied by law.

APPEAL from an order of the District Court, Hen

Thomas Kneeland and Boardman & Ferguson, for appellant.

Babcock & Davis, for respondent.

Gray, 353. In Pennsylvania it is held that contributory negligence is matter of defense, and ordinarily the burden of proving it is on the defendant. Mallory v. Griffey, 85 Penn. St. 275; Penn. Canal Co. v. Bentley, 66 id. 30; Penn. R. Co. v. McTighe, 46 id. 316; Beatly v. Gilmore, 16 id. 463. And in Vermont. Hill v. New Haven, 37 Vt. 501; Lester v. Pittsford, 7 id. 158. And the same rule prevails in Jersey. Durant v. Palmer, 5 Dutch. 544. There are many other cases, both in support of and against the rule, to which we need not now refer.

In view of the conflict in the authorities we are compelled to adopt such rule as may seem most consonant with justice. This being so, there certainly is no presumption that the plaintiff was negligent. We therefore hold the rule to be, that if the plaintiff can prove his case without showing contributory negligence, it is a matter of defense to be proved by the defendant. Abb. Tr. Ev. 595, and cases cited.

There is nothing in the testimony on behalf of the plaintiff tending to show that he was guilty of contributory negligence. The burden of proof of that fact therefore was on the defendant. The court did not err therefore in refusing to give the instruction in question; and no contributory negligence being shown the plaintiff was entitled to recover for his injuries, if the proper precautions were not taken to prevent persons passing along the temporary sidewalk adjoining the excavation from falling into it. As to the liability of the city in such case there is no doubt.

In Palmer v. Lincoln, 5 Neb. 136; S. C., 25 Am. Rep. 470, it was held that where the obstruction results directly from the acts which the contractor is required to do, the person who employs him is equally liable for the injury (Robbins v. Chicago, 4 Wall. 679; Storrs v. Utica, 17 N. Y. 108; Scammon v. Chicago, 25 Ill. 424), that is where the contract itself requires the performance of a work intrinsically dangerous, however skillfully performed, the party authorizing the work is regarded as the principal. Dill. Mun. Corp., $ 792. And any person travelling in a public street has a right to be absolutely safe, if he exercises ordinary care against all accidents arising from obstructions or imperfections in the street. If a person is authorized by the proper authorities to make an excavation in the street, he is bound at his peril to protect the same and keep it properly guarded. He must leave the walk or street in as safe a condition as it would be if the excavation had not been made. The city cannot exempt itself from liability resulting from the unsafe condition of the streets, and has no authority to authorize another to make them unsafe. Irvin v. Wood, 4 Rob. (N. Y.) 138; Congreve v. Morgan, 18 N. Y. 84; Hart v. Mayor, 9 Wend. 607; Dygert v. Schenck, 23 id. 446.

In the case last cited the defendant dug a race-way across the highway op his own premises to conduct water, and erected a bridge over the race. The plaintiff's horse fell through by the breaking of a plauk, and was injured. The court say (p. 447): “All the public could require was that he should make and keep the road as good as it was before he dug the ditch. That he accomplished by building a substantial bridge, origipally which did not get out of repairs for a number of years. The road however in the end proved to be less safe than it was when the bridge was first built; certainly less so than before the ditch was dug. In suf. fering this, the defendant came short of his obligation to the public,'' etc. Chicago y. Robbins, 2 Black, 418; Wood Nuis. 276, 277, and cases cited in notes. have no doubt of the liability of the city in such cases.

We see no error in the instructions of the court, and it is evident that substantial justice has been done The judgment is therefore affirmed,

BERRY, J. This is an action for libel, in which a a new trial was granted by the trial court upon the ground that the damages ($5,000) awarded to the plaintiff by the jury were excessive. The statute confers express authority upon the District Court to grant a new trial for the “excessive damages appearing to have been given under the influence of passion or prejudice." This implies a duty on the part of such court to sometimes overrule and set aside the verdict of a jury on that ground. To warrant this however the damages must be not merely more than the court would have awarded if it had tried the case, but they must (especially in an action for defamation) so greatly and grossly exceed what would be adequate in the judgment of the court, that they cannot reasonably be accounted for, except upon the theory that they were awarded, not in a judicial frame of mind, but under the influence of passion-that is to say, of excited feeling rather than of sober judgment, or of prejudice-that is to say, of a state of mind partial to the successful party, or unfair to the other. The damages must be so exorbitant as to shock the sense of the court, and satisfy it that after making just allowance for difference of opinion among fair-minded men, they cannot be accounted for except upon the theory that in the particular case the proper fair-mindedness was waiting. Worster v. Proprietors Canal Bridge, 16 Pick. 541; Towns. Sland. & Lib., § 293, and cases cited; Kinsey v. Wallace, 36 Cal. 462; Cook v. Cook, 36 U. C. Q. B. 553; Potter v. Thompson, 22 Barb. 87; Odger Lib. & Sland. 291; 1 Suth. Dam. 810; Hil. N. T., ch. 17, $ 39; 1 Grah. &Wat. N. T. ch. 2, 19.

It must be confessed that this expression of the principles upon which new trials should be granted for excessive damages is somewhat general and at large; but these are substantially the principles enunciated by text writers, and in the adjudged cases; and the subject is one which, from its very nature, hardly admits of more specific treatment. A motion for a new trial on this, as on some other grounds, appeals in a measure to the discretion of the trial court. Duffield v. Tobin, 20 Ga. 428; 3 Grah. & Wat. N. T. 1127 et seq., and cases cited. This does not mean that the motion is to be granted or denied at the mere pleasure or

*S. C., 20 N W. Rep. 87.



fancy or feeling of the court, but that the matter being NOTE.-(1) E.rcessive Damages.-See 9 Am. Rep. 200; one which cannot be determined by the application of 4 id. 593; 8 id. 661; 33 Eng. R. 736; 30 id. 769; 20 Alb. definite and precise rules, it is to be acted upon in the L. J. 332. exercise of a sound practical judgment, in view of all Verdicts are set aside only when they are not supthe relevant facts of the particular case, or to use a ported by proof, or when they are so excessive as to current expression, in view of the “whole situation.” indicate passion, prejudice, or an incorrect appreciaWhen then the propriety of an order granting a new tion of the law applicable to the case. Ayliff v. Hardy's trial for excessive damages comes before an appellate Exrs., 25 Ark. 49; Kelly v. McDonald, 39 id. 387; Teras court for review the question is not precisely that pre- & St. Louis R. Co. v. Eddy, 42 id. 5:27; Benson v. Chibeuted to the trial court, as above indicated, but cago & Alton R. Co., 78 Mo. 504. whether it clearly appears (for here, as elsewhere, error In Texas & P. Ry. Co. v. Loury, 61 Texas. 149, it was must appear affirmatively, and every presumption is held that when a bodily injury was sustained in conagainst it) that the trial court abused its sound discre- sequence of the negligence of a railway company, tion; or as more fully stated, that it failed to exer- which injury was of a permanent character, inflicting cise a sound practical judgment upon all the relevant great bodily pain when it was received, and for a long faots before it.

time afterward, it was held that a verdict for $2.000 Applying those views to the case in hand, we are was not so excessive as to require a reversal. See also forced to the conclusion that the order granting a new Texas and Pucific R. Co. v. McAtee, 61 Texas, 695. trial should be affirmed. We have no intention (es- In Van Winter v. Henry County, where through depecially as there is to be a new trial) of entering iu fendant's negligence' plaintiff suffered a conipound this opiuion into any detailed consideration of the tes- fracture of the left arm, and a partial dislocation of the timony or its effect. But after a careful perusal of the elbow, impairing the use of the arm for life, and rensettled case, and due consideration of the suggestions dering it quite painful at certain seasons, held, that a of counsel, we find ourselves utterly unable to say that verdict for $4,000 was not excessive. the learned District judge erred in the exercise of his In Lombard v.C., R. I. & P. R. Co., 47 Iowa, 494, the discretionary authority to graut or refuse a new trial. verdict for a broken leg was reduced from $4,000 to On the contrary, it seems to us that the reasons for his $2,500, but in that case there was no permanent in action, as set forth in his memorandum, such as the jury. The leg was as sound and strong as it ever absence of actual malice, the apparent good faith of the reporter, the character of the charge, the want of In an action brought by a brakeman, twenty-seren allegations and of evidence of special damage, are of years of age and receiving wages of $60 per month, no inconsiderable weight.

against a railroad company for damages caused by the It is to be remembered that in determining upon an negligence of the company, where the permanent disapplication for a new trial on the ground of an exces- ability is the loss of a leg below the kuee, and where sive verdict, as on other grounds, the trial judge occu- the plaintiff after his iujury had his leg sawed off three pies a position of practical advantage over an appellate times before the surgeon got it right, then was confined court, especially when, as in this instance, the plaintiff to his room over fifty days, and during the time had is one of his own principal witnesses. There is a cer- the lockjaw for twelve or fifteen days so severely as to tain atmosphere of the case and trial, well known to be unconscious at times, and suffered every thing that the profession, which cannot be put upon paper. Upon a man could suffer and not die, and upon the first all these considerations we find ourselves unable to trial a verdict for $8,000 was rendered, and upon the conclude that there was any failure on the part of the second trial a verdict for $10,000, held, that the last judge below to exercise the proper sound, practical verdict is not so excessive as warrant the Sujudgment upon all the relevant facts of the case preme Court to set it aside and grant a new trial solely before bim.

on the ground of excessive damages. Western, etc., R. What is said in Wilcox v. Landbery, 30 Minn. 95, upon Co. v. Moore, 31 Kaus. 197. the point that an appellate court will not necessarily In Marshall v. St. Louis, etc., R. Co., 78 Mo. 610, in an sustaiu an order granting a second or third new trial, action against a railroad company for carrying a febecause it has sustained one granting a first, although male passeuger beyond her station, the circumstances the facts may be substantially the same, has no appli- were such that the plaintiff was only entitled to recation to this appeal. At the first of the two former cover for the loss of time and expense incurred in trials of this case the verdict was not set aside on the being taken past her station and back, and the jury ground of excessive damages. At the second trial the were so instructed. The evidence showed that she jury failed to agree. The third trial, being that upon lost two or three hours' time, and paid $1.50 for a rewhich the order now before us was made, appears then turning conveyance. There was a verdict for $1,000, to be the first upon which a new trial has been granted reduced by remittitur to $750, and judgment accordfor excessive damages.

ingly. Held, excessive, and judgment reversed. These conclusions would dispose of the case, but (2) Libel.-See 6 Am. Rep. 105; 18 id. 380; 22 id. 503; with reference to a future trial we observe, that as held 25 id. 755; 30 id. 367; 31 id. 757 : 58 How. 471. in this case when it was here before (30 Minn. 41, 62), In White v. Cheesbro (S. C., 16 Week. Dig. 186) the libels like that here charged are actionable per se, and defendant charged that plaintiff, who was a merchant, neither proof of special damage or actual malice is nec- was a dishonest man; that he had on various occasion, essary to the maintenance of an action therefor. The for a period of years filled defendant's can, which beld words complained of impute negligence to the but five gallons, with kerosene oil, and had charged plaintiff in his profession as a physician. The him with six gallons, and that it was doue at the plainrule is well settled that where defamatory words are tiff's store. Held, actionable per se. falsely spoken or written of one in his profession, pre- In an action for slander defendant cannot give in judice to him, and malice on the part of the defamer, evidence specific acts of dishonesty on the part of the are implied in law. Cooley Torts, 193, 196; Bigelow plaintiff without having set them up in his auswer. Torts, 38, 40, 46; Simmons v. Hoister, 13 Minn. 249 (Gil. White v. Cheesbro, 16 Week. Dig. 186. 232); Folkard's Starkie Sland. & Lib., § 188; Ingram He may deny and justify. See 2 Am. Rep. 66; 29 v. Lawson, 6 Bing. N. C. 212.

Eng. R. 313; 17 Barb. 619; 9 How. Pr. 282.
The order granting a new trial is

So in assault and battery. 9 How. Pr. 289.
Affirmed. A justification being pleaded must be established as



broad as the charge made. White v. Cheesbro, 16 water. The consequence in one case is positive, in the Week. Dig. 186.

other negative; but in each it is the consequence of an - implied malice. See 5 Am. Rep. 195; 6 id. 105. act done outside of the jurisdiction where harm 00

curs, and the consequence is as direct in the latter case

as in the former. The right infringed in the former DIVERSION OF WATERCOURSE-PARTIES IN case is called absolute ownership, in the latter easeDIFFERENT STATES.

ment; but the laws of Rhode Island which make a

man owner of land there have no more power to diMASSACHUSETTS SUPREME JUDICIAL COURT. minish freedom of action in Massachusetts than any

other of its laws. A concurrence of the laws of both MAURELI Co. v. CITY OF WORCESTER.

States is as necessary in that case as in the one at bar

to create a liability which could be enforced in either The diversion of the waters of a natural stream in Massachu

State consistent with principle. Such a concurrence setts, and preventing the same from coming to plaintiff's

presents no technical difficulties, and if the substanmill in Rhode Island, is a tort for which an action may be

tive end to be attained is a proper one it will be recmaintained in Massachusetts.

ognized and acted on here, as we have no doubt it In such an action, so far as the water is returned, there is no

would be in Rhode Island if the position of the parwrong to plaintiff; but if there were the return would go

ties were reversed. in mitigation of damages.

Of course the laws of Rhode Island cannot subject THIS was an action of tort to recover damages for the Massachusetts lands to servitude, and apart from any

dirersion of the waters of Tatouck brook, to the constitutional considerations, if there are any, which injury of the plaintiff. It appeared in evidence at we do not mean to intimate, Massachusetts might prothe trial before Judge Barker and a jury, that the hibit the creating of snch servitude. So it might auplaintiff's mill is situated on the Blackstone river in thorize any acts to be done within its limits, however the State of Rhode Island, and that in 1876 the defend- injurious to lands or persons outside them. But it ant pumped water from Tatnuck brook into a reser- does not do either. It has no more objection to a citi. voir for a water supply, and thereby diminished the zen of Rhode Island owning an easement as incident flow of water at the plaintiff's mill. The defendant to his ownership of land in that State than it has to asked the court to instruct the jury that inasmuch as his owning it in gross or to his purchasing lands here the plaintiff is not shown to have any interest in any in fee. Questions might be conceived as to the transreservoir or in the waters situated within this State, fer of such easements, but they do not arise here. So the diversion of the waters of a natural stream in this far as their creation is concerned, the law of MassachuState and preventing the same coming to the plaintiff's setts governs whether the mode of creation be by deed mill, situated in Rhode Island, is not an act for which or prescription, or whether the right be one which is the plaintiff can maintain an action in this Common- regarded as materially arising out of the relation be. wealth. The court refused so to rule. The jury re- tween the two estates; being created by the laws of turned a verdict for the plaintiff, and the defendant Rhode Island, by permission of that of Massachusetts, alleged exceptions.

lays hold of them and attaches to them in such way as W. S. B. Hopkins, for plaintiff.

it is applicable to lands there, Massachusetts being se

cured against any thing contrary to its views of policy Frank P. Goulding, for defendant.

by the common traditions of the two States, and by HOLMES, J. This was an action of tort. It appeared the power over its own territory which it holds in reat the trial that the plaintiff was the owner of a mill in Rhode Island upon the Blackstone river, and there It was also contended for the defendant that the action was evidence that the defendant bad withdrawn could only be brought in Rhode Island, This objeca enough of the waters of Tatnuok brook, a tribu- tion is purely technical. The reasons which once made tary of that river in Massachusetts, to materially affect the venue important have long disappeared, and we the operation of the plaintiff's mill. The main ques- see no reason for any greater strictness than is abso. tion argued before us is raised by the refusal of a rul- lutely required by the statutes and precedents. If the ing requested that “the diversion of the waters of a plaintiff's mill was in any other county of this State an Datural stream in this State, and preventing the same action for damages would be rightly brought in Worfrom coming to the plaintiff's mill, situated in Rhode cester, not by public statutes only, but by the common Island, is uot a tort for which the plaintiff can recover law. As between two States, both of which recognize in the courts of the Commonwealth."

the right if the rule is to vary at all, it should be on The defendant's counsel contend, in the first the side of greater liberality to prevent a failure of jusplace, that such rights as the plaintiff claims cannot tice, such as would be likely to happen in the present extend beyond the Rhode Island line, and went the case if this action were not maintained. The weight length of maintaining that servitude cannot be created of judicial opinion is altogether in favor of allowing in our State in favor of lands in another.

an action to be maintained where the water was withWe are unable to agree to this proposition from either drawn. Most of the cases where both the action and principle or authority. Every decision and dictum the consequences complained of were outside the State that we have found bearing on the precise point is in which the action was brought are not opposed to the other way. Slack v. Walcott, 3 Mason, 508, 516; our conclusion, and we are not called upon to decide Thayer v. Brooks, 17 Ohio, 489; Stillman v. White Rock between Lord Mansfield in Mostyn v. Fabrizas,and Lord Manuf. Co., 3 Wood & M. 538; Foot v. Edwards, 3 Kenyon in another case. The American cases have Blatchf. 310; 14 How. 80: Wall., Jr., 274.

generally followed the latter. We think that the cases which recognize civil and The plaintiff asked the urt to rule that the defendant even criminal liability for flowing land in one State was liable for damages ineasured by the loss of power by reason of a dam in another are hardly less perti- which the whole amount of water pumped by the denent. Howard v. Ingersoll, 17 Ala. 780; 39 Me. 246; 17 fendants would have made, although the defendant Ill. 534; 54 Texas, 623; 16 N. H. 357.

had introduced evidence that a certain percentage of The defendant admits these cases to be law, and it was returned to the river. This ruling was refused, tries to distinguish them. But we cannot assent to and rightly. So far as the water returned, its withthe distinction between discharging and withholding drawal was no wrong to the plaintiff; and even if it


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