Imágenes de páginas

upon demurrer, which alleged that a nolle prosequi had In the case of Bacon v. Toune, cited above, Chief been eutered in the criminal action in substantially Justice Shaw says: “The same facts which would the same language used in the case at the bar, and the raise a strong auspicion in the mind of a cautious and court held the complaint sufficient. We think upou reasonable man against a person of notoriously bad principle as well as authority, the entry of a nolle character for honesty and integrity would make & prosequi upon an information, not upon the ground slight impression if they tended to throw a charge of that the information is insufficient upon its face, is an guilt upon a mau of good reputation." It is said that end to the prosecution of that case, and that such nolle the evidence does not show that Mills had any knowlprosequi cannot afterward be vacated, and further pro. edge of the previous good character of the plaintiff ceedings had in that case, unless vacated at the same when the criminal proceedings were instituted against term at which it is entered. Bish. Crim. Proc., $ 1396; him. The evidence does however show that Mills had Stute v. Nutting, 39 Me. 359; Parry v. State, 21 Tex. 746. known the plaintiff for several years before the proseThe objection made to the sufficiency of the complaint cution was commenced, and in tbe absence of any tes. was properly overruled.

timony showing the contrary, we must presume that [Omitting question of evidence.)

he knew his reputation among his neighbors. There is but one other question, as to the admissi- There are a great number of exceptions taken to the bility of evidence on the part of the plaintiff which was

refusal of the court to instruct the jury as requested objected to by the defendent, which we deem neces- by the defeudant, as well as to the instructions given sary to consider. On the trial the plaintiff was allowed by the court. Most of tbe instructions refused bear to give evidence of his previous good cbaracter, as a upon the question whether Hockert, the complaining part of his case, and not in answer to an attack upon witness, had probable cause to make the complaint as such character by the evidence of the defense. Tbis he did, and not upou the question as to the good faith eridence was all objected to by the defendant. Upon of the defendant, Mills, in setting on foot the prosethis question the authorities are somewhat in conflict. cution, if it was found that he did so set it on foot. This court has not heretofore passed upon the ques- After a careful reading of the instructions given by tion, and we are therefore at liberty to adopt the rule the court to the jury, we think, with one exception, which seems to us the more reasonable. The question noted below, all the questions upon the main issue in seems to us to be this, in determining the probability the case were fairly submitted. The court very pointof the guilt of a party charged with a crime: Has his edly told the jury that the burden of proof was upon previous good character any bearing on the question ?

the plaintiff to show-first, that Mills was in fact the We think this question must be answered in the affirm-real prosecutor of the criminal proceedings against the ative. The fact that it has weight in determining the plaintiff, and that without his interference, such proquestion of guilt, in all cases where there is any doubt ceedings would not have been instituted; and second, of the guilt of the accused party, is the basis of the

that when such prosecution was so set on foot by rule in criminal actions, that the defendant may in all Mills, he (Mills) had no probable cause for believing such cases, and perhaps in all cases, give in evidence the plaintiff guilty of the crime charged against bim. his previous good character. The fact that he has The court also gave the jury the true meaning of the such character is some evidence, and often very con- phrase "probable cause,' and stated what facts tended clusive evidence, of the innocence of the accused. to establish such probable cause, and what facts would When therefore a person is about to make a criminal tend to show a want of probable cause. complaint against a citizen of previously known good There are certainly no errors in the charge of the character and reputation, it is reasonable that he court prejudicial to the rights of the defendant, unless should consider that fact with the other facts and cir- the contention of the learned counsel of the appellant cumstances in determining the question of the prob

that no recovery can be legally had in this action, if ability of the guilt of the accused. If I lose my horse

there is sufficient evidence in the case to establish the under circumstances which indicate that he had been fact that Hockert had probable cause for making the stolen, and shortly after he is found in the inclosure complaint and causing the defendant's arrest, is the of a man who has the reputation of being a horse law which must govern the rights of the parties in thief, I might have probable cause for believing that this action. This seems to have been the theory upon that man had stolen him; but if he was found under which the defense was conducted in the court below, like circumstances in the jnclosure of a man whom I and if that be the true theory, then the judgment knew to have sustained a good reputation for many

should be reversed on account of the inconsistent inyears, there would be a question, at least, whether I

structions given by the court to the jury upon that would have probable cause to believe such man guilty point. The record discloses the fact that at the reof the theft. There are many cases which hold that quest of the defendant the learned Circuit judge inin a civil action, the character of the plaintiff is not in structed the jury in the first place, that “in order to issue until the same is attacked by the defendant, and entitle the plaintiff to recover in this action, the jury that until so attacked it is presumed to be good, and must be satisfied from all the evidence in the action therefore there is no necessity or propriety in giving that Mr. Hockert, the complainant in the criminal acaffirmative proof of such character. This as a general tion, did not have probable cause to believe this rule is undoubtedly the true rule; but in an action for plaintiff, Woodworth, guilty of the offense with which the malicious prosecution of a criminal action, where he charged him." Afterward in the general charge to the inain question in the case is whether the defend. the jury, he says: “It will be borne in mind that the ant had probable cause for instituting such proceed- question is whether the defendant, at the time it is al. ings, an exception should be made. In such action the leged he procured the complaint to be made, had plaintiff must prove a negative, that is, prove that the probable cause for his acts. It might be that Hookort, prosecutor did not have probable cause to believe him at the time the complaint was made, did so in goo guilty of the offense charged ; and as bearing upon that faith and with probable cause, and yet the defendant question, he ought to be permitted to give evidence of might be guilty, for it might be that the advice and his previous known good reputation. The following suggestions of defendant was what induced Hockert authorities are cited as sustaining our views on this to believe he had probable cause." These proposiquestion: Blizzard v. Hays, 46 Ind. 166; Israel v. tions are hardly consistent witb each other, and both Brooks, 23 IU. 575; Wade v. Walden, id. 425; Miller v. cannot be good law unless the rule in the cases of this Brown, 3 Mo. 127; Bacon v. Towne, 4 Cush. 217-240; kind is that when one iustigates a criminal prosecuRodriguez v. Tadmire, 2 Esp. 720.

tion and another makes the complaint upon which the

arrest is made, and the action is brought against the they established by uudisputed evidence.

It was instigator of the prosecution, no recovery can be had therefore properly submitted to the jury to find what uuless there was a want of probable cause showu as to the facts were, and when so found, to apply the law as both parties. We tbink the court stated the true rule given by the court in determining whether a want of in his general charge, and that if the proof satisfied probable cause had been established by the testimony. the jury tbat Mills iustigated and set on foot the Fagnanv.Knox,supra. The fact that the first instruction criminal prosecution, and that without his interfer- given at the request of the defendant is inconsistent ence it would not have been instituted, then if with that afterward given in the general charge, is no Mills had no probable cause to believe the plaintiff ground for reversing the judgment, as we are clearly guilty of the offense charged against him, a recovery of the opinion that the instruction first given, which could be had against him, although Hockert, the man is mo-t favorable to the defendant, was erroneous. who made the complaint, might have had probable The defendant cannot take advantage of an erroneous cause for his action at the time the complaint was instruction given at his request. On the whole we made. See Miller v. Mulligan, 48 Barb. 30. This case find nothing in the record which shows that the apwas similar to the case at bar in its main features and pellant bas not had a fair trial in the Circuit Court, as to the evidence, and the court sustained the action and we cannot say that there is no evidence to support upon the rule above stated.

the findings and verdict of the jury. It seems to us that any other rule would work great The judgment of the Circuit Court is injustice. To illustrate, let us take a very bald case :

affirmed. One man, having malice against another, takes the [See Hatch v. Cohen, 84 N. C. 602; 37 Am. Rep. 630. horse of a third person at night from the stable or in- -ED.) closure of such third person and puts him in the inclosure or stable of the man against whom he entertains malice. The circumstances of the taking are

RIPARIAN RIGHTS - OBSTRUCTING WATERsuch as to induce an ordinarily reasonable man to be

COURSE. lieve the horse was stolen. The man who removed the horse from the owner's stable or inclosure goes to

MICHIGAN SUPREME COURT, SEPT. 23, 1884. the owner and informs him that shortly after the horse was missing hu was informed by A., B., and C.

Boyd v. CONKLIN.* that the horse was seen in the inclosure of the person

A rural land owner has no right to put up such artificial baragainst whom he entertains malice, and acting upon

riers as will flood his neighbor's land with water that such information, & criminal prosecution is com

would otherwise escape over his own, for the mere purmenced by the owner against the person in whose in

poses of reclaiming the bed of a pond that has always been closure he was found. Clearly in such case, the per

on his premises, and of getting rid of the inflow. son making the complaint might be entirely justified

in what he did, and yet the malice and want of prob- ERROR to Lenawee. Opinion states the case.

motion would be perfectly apparent. The true rule is

A. L. Millard and Bean & Underwood, for plaintstated by Mr. Townsend in his work on Slander and

iff. Libel, $ 428, p. 715, he says: “Although the facts Merritt & Wooden and C. A. Stacey, for defendants. known to the prosecutor may make out a prima facie case of guilt against the plaintiff, yet if the prosecutor

CAMPBELL, J. Boyd sued defendants for removing does not believe the plaintiff to be guilty, he acts with

part of a dam which he had built across the outlet out reasonable and probable cause." And certainly

which drained an adjoining highway and higher lauds when the prosecutor or person instituting the prosecu

adjacent. Lorenzo D. Dewey owned a farm running tion knows that the suspicious circumstances against

north of the highway about half a mile, and a swale the accused are all consistent with his innocence, and

ran through this land from north to south which

crossed the road through a culvert, from which the he knows the accused is not guilty, he cannot have reasonable cause for his prosecution. See Turner v.

water flowed across Boyd's farm to a pond on his land Ambler, 10 Q. B. 252; Broad v. Ham, 5 Bing. (N. C.)

which has no surface outlet. The swale is crossed by 722; Fagnan v. Knox, 66 N. Y. 525. In the last

an old beaver dam near its north end, and a creek case cited, Church, C. J., says: “But however sus

called Evans' creek, a little to the north of it, some

times overflows, so that the water runs over this beapicious the appearances may be from existing circum

ver dam into the swale. The swale carries down all stauces, if the prosecutor has knowledge of facts which

the surface water on Dewey's land, and there was tegwill explain the suspicious appearances and exonerate the accused from a criminal charge, he cannot justify

timony tending to show that it was partly fed by a prosecution by putting forth the prima facie circum- springs, although this was disputed. Both farms are

inclosed by a ridge, which prevents any water passing stances, and excluding those within his knowledge which tend to prove innocence." This view of the

from Dewey's land from escaping exoept through the

swale and into the pond, and there is no other way of case shows the pertinence of the evidence of the admissions of the defendant, testified to by some of the

draining the highway. The soil is clay, except to the plaintiff's witnesses, made after the prosecution was

south and east of the pond, where it is gravelly, and instituted. These admissions, if made and satisfacto

where there is some escape of water by percolation,

and possibly by a subterranean outlet. rily proved, tended strongly to show that the defend

Both farms seem to have been in private hands for ant, Mills, did not believe the plaintiff guilty of the larceny charged against him, even though there were

above fifty years. The road appears by the testimony

to be the La Plaisance Bay turnpike, which was, as circumstances, which to an ordinarily reasonable person, tended to prove his guilt.

we are judicially informed by publio statute, laid out The exception taken by the defendant, that upon

in 1832, and built by the United States goverument, and the whole evidence the question of probable cause was

subsequently became subject to State authority, and

is now in charge of the ordinary town authorities. a question of law and not of fact for the jury, was clearly not well taken. The questions of fact, from

Just north of the road (which runs east and west on

the section line between sections 32 and 29, in township which a want of probable cause on the part of Mills might be found, were not admitted by Mills, por were

*S. C., 20 N. W. Rep. 595.

5 S., of rauge 4 E.) the swale wideus on Dewey's land happens that from the time of Bracton down atteninto a small pond. The pond on Boyd's land is never tion has been frequeutly called by the common-law dry, and before he built the dam contained usually courts to the fact that the whole subject of rights in from six to eight acres, of which a space of several water has been defined by the civil-law writers in terms acres became dry by means of the exclusion of the which substantially agree with the recoguized rules of water which came down from the lands above, which the common law, and that they agree very closely,not had no other escape. The dam was a solid structure necessarily because one has been borrowed from the twelve feet thick at the base and seven in the top, other, but rather because both are naturally drawu abut a hundred paces long, and higher than the highest from the general usages aud necessities of maupart of the culvert or highway. Its effect was to sub- kind. merge the road, and also to throw the water all back All of the considerations which belong to the presover the highway and upon Dewey, where it had no ent case depend on the reciprocal action on both upescape but by evaporation.

per and lower proprietors of the maxim that every Boyd purchased the farm, which contains a little man, in the use of his own property, must avoid inover ninety acres, in 1872, at which time there was no juring his neighbor's property as far as possible. And obstruction to the flowage. He first built the dam in while the cases cited on the hearing show that courts 1877, and it was removed so as to give room for the bave sometimes indulged in sweeping language, that water in 1878 by the highway commissioner. Being taken independently would lead to remarkable results, rebuilt, it was removed in 1879 by defendants under di- the facts on which the apparently conflicting ruliugs rection of the local authorities; Conklin himself being rest greatly varrow their substantial repuguance. commissioner, and acting in pursuance of their in- There are, it must be admitted, decisions that cannot structions. The case, as it is now before us, presents possibly be harmonized; but their uumber and their no complications. The dam was built for the sole and force do not equal their apparent importance. Aud express purpose of shutting out the water, which had there is no subject on which local usages have bad so its only outlet through the swale and over Boyd's land, much weight in shaping the local common law as the and this was its original and natural outlet. It was incidents of real estate. There are parts of the Union not artificial, but bad always existed since the country where the land laws have always differed from the was known; and the existence of a beaver dam makes common law of other States, while the law relating to it uot unlikely that it was once a running stream. water has been laid down in a large part of the United Whether its waters are to any extent from spring or States in a uniform manner, without reference to their not, they include the whole surface drainege, and are ancient condition as French, Spanish or Euglish colopot confined to passing storms. There is some testi- nies. The civil-law definitions, or what are supposed mony of occasional attempts by the lower owners to to be such, are quoted as often under the one class of obstruct the water, but no evidence of acquiescence, antecedents as under the other. and very little, if any, of submission by the highway The chief differences pointed out on the argument authorities to such obstructions.

as important in weighing decisions as furnishing preIf this had been an artificial drainage, the long ex- cedents, related to distinctions between living streams istence of the road, which could not be kept in repair in a vatural flow and water of a different character in without drainage, and the undisputed fact that a regu. artificial escapes or in surface descents—to distinctions lar culvert has existed at least since 1845, and that no between urban and rural servitudes—and to the purother drainage was possible, would in our opinion put poses for which dams or other interruptions are made. plaintiff to very strong proof to overthrow the pre- It is not disputed that perennial flowing streams of livsumption of right. The court below gave plaintiff the ing water impose similar duties, and confer similar benefit of tbat analogy, and going very far in the en. rights on all riparian proprietors under all systems of deavor to avoid giving occasion for cavil, limited de- jurisprudence. It is not disputed that under what is fendant's justification to a substantially uninterrupted claimed to have been the civil law rule, the rural proprieenjoyment of the drainage for twenty years, without tor of lower lands was required to receive the water flow substantial objection to the publio or highway au- of surface water from the upper lauds coming in subthorities. But plaintiff insists that his right to inter- stantially its natural amount and condition. Beyond cept surface water cannot be cut off in that way, and this we cannot harmonize much of the contention of that except in case of living waters in a defined and counsel, and must dispose of the case as it appears to regular channel there is no such obstacle, or none us. A number of the most striking cases cited by without such an undisputed prescriptive right as would plaintiff's counsel in support of his appeal, as laging be equivalent to a grant.

down the broadest doctrine, and as relied upon in a On the argument the whole subject was discussed good share of his other citations, were cases where the with much ability. It is not necessary however to con- lands were in towns and cities, and the erections or sider any more of the legal vheories than such as have acts in litigation referred to the uses of that class of some application on the facts. The real question here was property. And in relying on these it was claimed that whether one laud-owner can at his pleasure erect such there was no substantial foundation for any distincbarriers as will flood his neighbor's laud with water tion between urban and rural property. that otherwise would escape over his own, in order to There is no question but that such a distinction is partially or wholly reclaim the bed of a pond which recognized in the civil-law authorities referred to on has always existed there, and get rid of the inflow. In the argument, as well as in several of the cases cited. its natural condition neither the highway nor the up- The distinction is one of substance, and not arbitrary. per lands would be drowned. The effect of the dam is As already suggested, the adjoining owners owe muto cover portions of them with water that cannot tual duties—the one to receive the natural flow, and cape. It was urged strenuously on plaintiff's behalf that the other not to injuriously change its conditions. It there is a radical difference between the common and is obvious that the laying out of town streets and the the civil law won the subject of the relations of upper multiplication of buildings cannot avoid making seriand lou restates as to water easements and servitudes, ous changes in the surface of the ground and in the and that at common law the latter owes 10 service to condition of surface water. Grades must usually be the forme: in regard to the flow ví surface water. As established for streets and sidewalks and pavements, we are not expocted officials to be experts in the and other surface changes are usual, in addition to the OFaw. 176 stall not attempt to discuss that depart- walls of buildings which, with their embankments, Dorst of jurisprudence as a separate subject. But it so must obstruot or change the drainage. It is almost


universally expected and provided that sewerage and drainage shall be regulated by some municipal standard. There cannot be towns without changing the face of the land materially. And where the same rule has been applied to towns as to the country, it has, in some cases at least, been done expressly, because in the circumstances of the record the particular land in question had remained under rural conditions. If, as seems to be true, some decisions ignore the distinction, they depart from the old rule, and cannot be maintained as harmonious with the general line of authority, unless on special facts which do not justify their broad dicta.

The Massachusetts cases lay down so broadly the right of the lower proprietor to cut off the water flowing down on him that whatever distinction may be found in their facts the court evidently meant to disregard them. The Wisconsin cases perhaps go about as far, and the Indiana rule is stated in similar terms. It can hardly be said that there is any fixed New York rule which would apply to such a case as the present.

In tbe case of Barkley v. Wilcox, 86 N. Y. 140; S.C., 40 Am. Rep. 519, where the interference with the water was by building and banking up a house near a street, the facts did not call for any very general discussion, and the court, while expressing a preference for the views of the Massachusetts courts over the rule in Pennsylvania and other States to the contrary, saw the necessity of caution in adopting those views too universally, and left the door open to deal with cases like this on their own footing.

In Bowlsby v. Speer, 2 Vroom (N. J.) 351, the facts and the decision were like those in Barkley v. Wilcox, but can hardly be said to disturb the earlier case of Earl v. De Hart, 1 Beasl. 280, where the civil-law principle was treated as in some cases furnishing a proper rule for town property which was not so situated as to require a different treatment.

Mr. Washburn in his treatise on Easements, 355, indicates that the Massachusetts rule is not sustained by the weight of American authority, and that the rule known as the civil-law rule has been more generally accepted. He cites most of the authorities brought to our attention on the argument, and they unquestionably sustain the existence of duties between the respective land-owners to do no harm to each other against the natural servitude. Much of the discussion found in the cases referred to turns, not on the right of the upper owuer to have egress for his water, but upon the right of the lower owner to have the water come down. In the present case Boyd does not seem to desire this supply. But it is quite supposable that if this pond were not entirely on his premises it might be of some importance to the neighboring land that it should not be diminished or destroyed.

It is not necessary on this record to determine how far defendants could themselves have shut off the supply, because it is evidently not for their interest to do 80. But there is no lack of cases which hold that rights may exist in a flow of water which is not a natural living stream. And while here, as in other cases, the rights of parties must depend somewhat on the circumstances and surroundings, the general principle underlying all the cases is that the upper and lower owners must respect any valuable rights which accrue to either from the position of their lands. The narrow definition of water-courses as natural living streams, which appears in a few cases in the United States, is not an ancient or universal definition. On the contrary, water running in a natural or artificial bed is very frequently, if not generally, so regarded. But pames are of small importance, inasmuch as the only cousideration that need be looked at is the character and surroundings of the flowage. The following

authorities recognize valuable rights in water, and some of them are spoken of expressly as water-courses which are

entirely distinct from natural living streams: Woolr. Wat. 3, 146, 147; Wright v. Williams, 1 Mees. & W.77; Raustron v. Taylor, 33 Law & Eq. 428; Broadbent v. Ramsbotham, 11 Exch. 602; 34 Law & Eq. 553; Beeston v. Weate, id. 133; Ivimey v. Stocker, L. R., 1 Ch. App. 396; Watts v. Kelson, L. R., 6 Ch. A pp. 166; Nuttall v. Bracewell, L. R., 2 Exch. 1; Hclker v. Poritt, L. R., 8 Exch. 107; Taylor v. Corp. of St. Helen's, 6 Ch. Div. 261; Hagor v. Chadwick, 11 Ad. & E. 571; Chadwick v. Marsden, L. R., 2 Exch, 285

Upon such questions as are raised on this record there is, except in the Massachusetts doctrine and the cases which have followed it, very little conflict of opinion. Whatever may be the rights of adjoining proprietors as to the use and diversion of water, there is no right in any one, by raising artificial obstructions, to flood his neighbors' lands by stopping the escape of water that cannot escape otherwise. Some cases have intimated that there might be larger rights of obstruction where the particular drainage was not necessary. But actual mischief done as a natural and necessary consequence of such erections is almost universally treated as an actionable nuisance. Laurence v. G. N. R. Co., 16 Q. B. 613; Rylands v. Fietcher, L. R.. 3 H. L. 330; Tootle v. Clifton, 22 Ohio St. 247: S, C., 10 Am. Rep. 1732; Wood Nuis., S 386; Hurdmani v. N. E. R. Co., 3C. P. Div. 168; Whirlley v. Lancashire & Y. Ry. Co., Eng. Ct. App., March, 1884. summarized in 30 Alb. L. J.3; Broder v. Saillard, 2 (h. Div. 692: Gillham v. Madison Co. Ry. Co., 49 m. 484; Gormley v. Sanford, 52 id. 158; Ogburn v. Connor, 46 Cal. 346: $. (., 13 Am. Rep. 213; Buller v. Peck, 16 Ohio St. 334 ; Neving v. City of Peoria, 41 III. 502; Livingston v. Jc Donald, 21 Iowa, 160; Hooper v. Wilkinson, 15 La. Ann. 497; McCormick v. Kansas City R., 70 Mo. 359, S. C.. 35 Am. Rep. 431; Shane v. Kansas City Ry., 71 Mo. 237; S. C., 36 Am. Rep. 480.

As previously suggested, the rights of upper aud lower owners are not treated by the common-law au: thorities as peculiar to either common or civil law, but as natural incidents to the land, which are and must be analogous, as governed by universal jurisprudence, except where specially modified. The English courts have never hesitated to cite the civilians on such questious, and they have decided cases arising out of England without attempting to inquire into any local law as the basis of decision. Thus in the East Indian case of Rameshur Pershad Narain Singh v. Koonj Behari Pattuk, 4 App. Cas. 121, the rights of the parcies were dealt with just as if they had arisen in England, although the uses of tanks and reservoirs in India must in all probability have growit into very ancient customs. In Smith v. Kenrick, 7 C. B. 515, the Digest was cited as authority.

In Dickinson v. Grand Junction Canal Co., 9 Law & Eq.513, and in Embrey v. Owen, 4 Eng. Rep. 466, it is stated that these various rights are not to be regarded as based on any presumption of grants, but as incident to property jure nalurce.

Bracton is cited in Wood Nuis., $ 386, as coinciding with the civil-law rule. While he has been regarded as drawing too much from the Roman law in some other matters, no one has doubted that he laid down the common law correctly on this. Britton lays it down very clearly that no one can drown bis neighbor's land by erections on his own soil. “Appurtenances," fol. 140. The civil-law rule was recognized and adopted in the customary as well as in the written law, in parts of France, and in (anada and Scotland; and the Roman law in all these regions was modified by local usage, and in many things repudiated. In Basuage's Commentary on the Customs of Normandy it is not

treated as a civil-law rule, but as a law of nature. 2 title, through the instrumentality of merely oral eri. Bas. 565.

dence, he cannot complain, if he is held to that quiIn Frechette v. La Compagnie Manufucturiere de St. form measure of proof, which will secure adequate pro. Hyacinthe, L. R., 9 App. Cas. 170, the Lower Canada tection against the effects of fraud and perjury, and Code is quoted, which seems to be a substantial if uot especially so if he choose as the custodian of the title a literal transcript of section 640 of the French Civil his wife or child to whom he occupies a relation of Code, and regulates the rights of both classes of own- especial duty and obligation, and in whose faror preers, forbidding the lower owner from hindering the es sumptions of peculiar force m ust necessarily arise. In cape of water by dikes, and forbidding the upper owuer Roberts' Appeal, 4 Norris, 87, which was affirmed upon from aggravating the flow to the injury of the lower the opinion of the court below, Thayer, J., in speakestate. In discussing this clause, a learned writer on ing of trusts which arise from the payment of pur the law of property, Charles Comte, speaks of the chase-money, said: “Th presumption of such a reterm “servitude," which strictly denotes a diminution sulting trust is always rebutted where, to use the lanof rights, as an unfortunate and improper phrase to guage of the books, 'the purchase may be fairly apply to these reciprocal duties. “It is simply a deemed to be made for another from motives of natameans of preventing usurpation, and of securing to ral love and affectiou.' Thus a purchase in the name each that which belongs to him." While Erskine, in of a wife or a child, is uniformly held by the unaided his “ Principles of the Law of Scotland,'' uses the force of the relationship alone to rebut the presumpterm “servitude" as including the rights in question, tion, unless there be clear evidence to show the donee he speaks of them as natural, as contradistinguished was intended to be a mere trustee." In a long line of from legal servitudes. Book 2, tit. 9. Domat refers cases it has been held that to establish a resulting to them in the same way, dividing servitudes into trust the evidence must be clear, explicit and unequir. those which are natural, and those which do not rest ocal; the rule is so well established that a citation of on natural right. Book 1, tit. 12, S 5. And this is fur- the authorities in extensio Beerns unnecessary. We ther illustrated by his collection of excerpts from the may refer however to McGinity v. McGinity, 13 P. F. Roman law. 4 Dom. 423

S. 38; Nixon's Appeal, id. 279; Lingenfelter v. Richey, There seems to be no reason for attempting to draw 12 id. 123; Kistler's Appeal, 23 id. 393; Fricke v. Madistinctions between the civil and the commor law on


10 Week. Notes, 50; Buchanan v. Streeper, 11 id. this subject. The authorities recognize the principles 434. Whether therefore a trust is deducible in any as in no sense conventional, or derived from any given case from the nature of the transaction as a matschool of jurisprudence, but as resting on the immu- ter of actual intent, is susceptible of oral proof; but pity of one man's property from injury by another in he who alleges the trust takes the burden of establishviolation of natural justice, and in disregard of the re- ing it, and all the essential requisites of that trust relative conditions arising from its position. Each may must be shown by clear, explicit and unequivocal do in using his own what is consistent with the fair in proof. Earnest's Appeal. Opinion by Clark, J. terest of the other.

[Decided May 26, 1884.) The escape of water in the present case is natural and

COPYRIGHT LECTURE is necessary, and there was no right to prevent it by TION.-The publication by one who had attended lec

PUBLICATION – INJUNC. such a dam as defendants broke through. The charge given was at least as liberal as plaintiff had a right to

tures delivered orally by an eminent surgeon, of a ask. The judgment should be affirmed.

summary or epitome thereof, under the name of the

lecturer, as author of such epitome, will be enjoined. Champlin and Sherwood, JJ., concurred.

The publication of a book containing the substance of Cooley, C. J., did not sit.

such lectures however will not be restrained. Viller's [See 30 N. Y. 519; 13 S. C. 97.]

Appeal. Opinion per Curiam.



ers of land bordering upon the bed of a turnpike have TRUST-RESULTING-TAKING DEED IN WIFE'S NAME

a right to pass to and from the land ou to the road, and

to construct proper bridges or causeways for that pur-EVIDENCE MUST BE CLEAR.- When property is paid

pose. (2) Where a bridge or causeway across the gutter for by the husband and title taken in the wife's name,

at the side of the road was alleged by the turnpike com. the law presumes that a gift was intended. The pre

pany to constitute an obstruction to the drainage of the sumption of gift, it is true, is but a presumption of

road, it was proper in an action brought by the turupike fict, which determines the burden of proof; yet as the effect of the rebutting evidence may be to fasten a

company against the land owner to submit the ques

tion to the jury whether there was sufficient space left trust upon a legal title, it must for that reason con

under the bridge or causeway for the water to flow, in form to the measure stated; every element essential to the existence or creation of a resulting trust in any graphic views of the locality are admissible in evidence

view of all the circumstances of the case. (3) Photogiven case must be clearly shown. This rule grows

in such a case, and the fact that they did not exhibit out of the policy pursued under the statute of frauds, and its enforcement is essential to the secure enjoy every part of the ground is not cause for their exclu

sion. Chestnut Hill, etc., Turnpike Co. v. Piper. Opio. ment of real property. We cannot distinguish be

ion per Curiam. tween the measure of proof required to rebut the ordinary presumptions arising from the face of the deed (Decided Jan. 21, 1884.] to Elizabeth Hill, and the presumption of gift, arising MARRIAGE-WIFE'S SEPARATE ESTATE-HUSBAND'S from the relation of the parties, when the purpose is CREDITORS.—(1) The act of 1848 provides in very clear to set up a resulting trust against the legal title. Re.. terms that “property of whatever kind or nature, sulting trusts, although reserved out of the statute of which shall accrue to a married woman during covertfrauds, are in conflict with the sound principles upon ure,” shall be " owned and enjoyed by her as her own which that statute is based (Stronpflee v. Roberts, 6 separate property," and "shall not be subject to lery Harris, 298); and when one voluntarily places his and execution for the debts and liabilities of her husrights to real property in such a plight that he can only band.” It is her “property" only however that the establish them by an attack upon the written legal Legislature intended to protect; her earnings, her ef

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