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findings of fact made by the court, none of any special importance is disputed by counsel for appellants. The trial court awarded a perpetual injunction restraining each and every of the nonriparian owners of land from diverting or interfering with the water of the river. Appellants excepted to the conclusions of law as announced by the court, and to the whole decree, as founded on erroneous conclusions of law, and here insist that the rights of all parties should be determined by this court by the application of the doctrine of appropriation, in accordance with the facts found by the superior court. It may be stated generally that the court found from the evidence the date when each party settled upon his land and took the initiatory step in the acquisition to title thereto, as well as the date at which he appropriated the water for agricultural purposes. While the court recognized the existence in this state of the doctrine of prior appropriation, it nevertheless held that the plaintiff and plaintiff interveners, who settled upon their respective lands, and acquired their title thereto by complying with the laws of the United States, and appropriated and used the water of the stream for irrigation and domestic purposes, prior to the diversion by appellants, were entitled to have the stream continue to flow as it naturally flowed through or by their lands at the time their possessory rights attached. In other words, the court held that the respondents were entitled to the common-law rights of riparian proprietors, as against subsequent appropriators of the water, from the date of their occupancy, with intent to acquire the title of the government in pursuance of law. And this ruling of the trial court was not at variance with the rule repeatedly announced by this court, and the territorial supreme -court except upon the question as to the date at which riparian rights become vested in lawful occupants of public land. That such rights, as well as the right of prior appropriation, have hitherto been recognized in the decisions in this state, will be disclosed by an examination of the following cases: Thorpe v. Tenem Ditch Co. 1 Wash. 566; Ellis v. Pomeroy Improv. Co. 1 Wash. 572; Geddis v. Parrish, 1 Wash. 587; Crook v. Hewitt, 4 Wash. 749; Rigney v. Tacoma Light & W. Co. 9 Wash. 576, 26 L. R. A. 425; Isaacs v. Barber, 10 Wash. 124, 30 L. R. A. 665. Nor did the legislature disregard the rights of riparian owners in the general act of 1890 relating to appropriation of water for irrigation. 1 Hill's Code, 1718 et seq. On the contrary, SS 1761 and 1774 of that act especially recognized the existence of riparian rights, and we do not see anything in that statute or the subsequent act of 1891 evincing an intention on the part of the legislature to disregard such rights.

But it is most earnestly insisted by the learned counsel for appellants that the common-law doctrine touching riparian rights is not applicable to the arid portions of the state, and especially to Yakima county; and this court is now urged to so decide, notwithstand ing anything it may heretofore have said to the contrary. The legislature of the territory of Washington in the year 1863 (Laws 1863, p. 68) enacted that "the common law of England, so far as it is not repugnant to, or inconsistent

with, the Constitution and laws of the United States and the organic act and laws of Washington territory, shall be the rule of decision in all the courts of this territory." The language of this provision was changed by the state legislature in 1891 by omitting the words "of England," substituting the word "state" for "territory," and inserting the clause, "nor incompatible with the institutions and condition of society in this state." Code Proc. $ 108. But the meaning remains substantially the same. It thus appears that the common law must be our "rule of decision," unless this case falls within the exceptions specified in the statute. Now, the common-law doctrine declaratory of riparian rights, as now generally understood by the courts, is not, in our judg ment, inconsistent with the Constitution or laws of the United States or of this state. Nor is it incompatible with the condition of society in this state, unless it can be said that the right of an individual to use and enjoy his own property is incompatible with our condition,-a proposition to which, we apprehend, no one would assent for a moment. It is held by practically all the better authorities that the right of the riparian owner to the natural flow of the stream by or across his land in its accustomed channel is an incident to his estate, and passes by a grant of the land, unless specially reserved. It is not an easement in or an appurtenance to the land, but, as Angell says, is as much a part of the soil as the stones scattered over it. Angell, Watercourses, $5.

"By the common law," says the court in Lux v. Haggin, 69 Cal. 255, "the right of the riparian proprietor to the flow of the stream is inseparably annexed to the soil, and passes with it, not as an easement or appurtenance, but as part and parcel of it. Use does not create the right, and disuse cannot destroy or suspend it. The right in each extends to the natural and usual flow of all the water, unless where the quantity has been diminished as a consequence of the reasonable application of it by other riparian owners for purposes hereafter to be mentioned." And one of the purposes thereafter mentioned was irrigation. In Washburn on Easements & Servitudes, 4th ed. pp. 316, 317, the learned author says: "The right of enjoying this flow, without disturbance or interruption by any other proprietor is one jure naturæ, and is an incident of property in the land, not an appurtenance to it, like the right he has to enjoy the soil itself, in its natural state, unaffected by the tortious acts of a neighboring landowner. It is an inseparable incident to the ownership of land, made by an inflexible rule of law an absolute and fixed right, and can only be lost by grant or twenty years' adverse possession." (In this state, by statute, an adverse possession for ten years would destroy the right.) And the law on this subject is laid down by Prof. Pomeroy in language equally clear and explicit. He says: "The use of the stream, and of the water flowing through it, forms a part of the rights incident to and involved in the ownership of the lands upon its borders. This is the principle recognized by the common law, and which should be recognized by any auxiliary legislation. It is, more

over, a natural law, an inevitable fact, which water rights in the mineral districts of Calino legislation can change. Any statute deny.fornia was lucidly discussed by Chief Justice ing this fact simply attempts an impossibility." Sanderson in Hill v. Smith, 27 Cal., at page Pom. Riparian Rights, § 152.

482. With reference to the charge of the trial While the doctrine announced by the fore- court, which seemed to be based on an errone going authorities has never, so far as we are ous view of the law with respect to the rights advised, been directly denied, it has been ap- of miners and ditch owners using the water of parently ignored by the courts in some of the a stream for mining purposes, the learned chief Pacific states and territories, on the theory that justice said: "This is due in a great measure, the principles and rules of the common law re- doubtless, to the notion, which has become specting the rights of private riparian owners quite prevalent, that the rules of the common were inapplicable to the condition and neces-law touching water rights have been materially sities of the people of the particular localities modified in this state, upon the theory that where the causes of action arose. Coffin v. they were inapplicable to the conditions found Left Hand Ditch Co. 6 Colo. 446; Drake v. to exist here, and therefore inadequate to a just Earhart, 2 Idaho, 716; Stowell v. Johnson, 7 and fair determination of controversies touchUtah, 215; Moyer v. Preston (Wyo.) 44 Pac. ing such rights. This notion is without any 845; Clough v. Wing (Ariz.) 17 Pac. 453; Tram- substantial foundation. The reasons which bley v. Luterman, 6 N. M. 15. But the legis- constitute the ground work of the common law latures of those states and territories have at- upon this subject remain undisturbed. The tempted to abolish the common-law doctrine conditions to which we are called upon to aprelative to private property in watercourses ply them are changed, and not the rules themand to riparian rights generally. Pom. Ripar- selves. The maxim, Sic utere tuo, ut alienum ian Rights, § 106. And the decisions above non lædas, upon which they are grounded, has cited are presumably in accordance with the lost none of its governing force; on the conlocal statutes, though some of them, it appears. trary, it remains now, and in the mining were grounded solely on the assumption that regions of this state, as operative a test of the the rules of the common law were inapplicable lawful use of water as at any time in the past, by reason of the aridity of the soil and the or in any other country. When the law deconsequent necessity for extensive irrigation. clares that a riparian proprietor is entitled to But how it can be held that that which is an have the water of a stream flow in its natinseparable incident to the ownership of land ural channel,-ubi currere solebat,-without in the Atlantic states and the Mississippi valley diminution or alteration, it does so because its is not such an incident in this or any other of flow imparts fertility to his land, and because the Pacific states, we are unable clearly to water in its pure state is indispensable for docomprehend. It certainly cannot be true that mestic uses. But this rule is not applicable to a difference in climatic conditions or geo- miners and ditch owners, simply because the graphical position can operate to deprive one conditions upon which it is founded did not of a right of property vested in him by a well- exist in their case. They seek the water for a settled rule of common law. The mere fact particular purpose, which is not only compatthat the appellants will not be able to occupy ible with its diversion from its natural chanor cultivate their lands as they heretofore have nel, but more frequently necessitates such didone unless they irrigate them with water taken version, and moreover does not require the from the Ahtanum river is no sufficient reason water in a pure state in order to insure its reafor depriving the respondents, who settled sonable and beneficial use." In Atchison v. upon that stream in pursuance of the laws of Peterson, 87 U. S. 20 Wall. 507, 22 L. ed. 414, the United States, of the natural rights incident the Supreme Court of the United States stated, to their more advantageous location. The as claimed by appellants, that, as respects the necessities of one man, or of any number of use of water for mining purposes, the doctrines men, cannot justify the taking of another's of the common law declaratory of the rights of property without his consent, and without riparian owners were, at an early day after the compensation. If it be true, as claimed by ap- discovery of gold, found to be inapplicable, or pellants, that, if the judgment of the court be- applicable only in a very limited extent, to the low is affirmed, their land will again become necessities of miners, and inadequate to their a barren waste, and cease to "blossom as the protection. That action was brought by parrose," it is equally true that, if the waters of ties who were ditch owners, for an injunction the river are diverted from its channel, the to restrain the defendants from carrying on cerpremises of the respondents will become un-tain mining operations on Ten-Mile creek, in productive and utterly worthless. "The aridity of the soil and air being made the test, the greater the aridity the greater the injury done to the riparian proprietors below by the entire diversion of the stream, and the greater the need of the riparian proprietor the stronger the reason for depriving him of the water. It would hardly be a satisfactory reason for depriving riparian lands of all benefit from the flow that they would thereby become utterly unfit for cultivation or pasturage, while much of the water diverted must necessarily be dissipated." McKinstry, J., in Lux v. Haggin, 69 Cal. 255. The question of the applicability of the common law in controversies respecting

Montana, and the question of riparian rights does not seem to have been involved therein. In fact, in the course of the opinion it is observed that "the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the commonlaw doctrine of riparian proprietorship in respect to the waters of those streams,"-meaning the streams on the public lands, the waters of which were subject to appropriation and use under the customs obtaining among miners. In Basey v. Gallagher, 87 U. S. 20 Wall. 670, 22 L. ed. 452, the question on the merits in the case, as stated by the court, was whether a right

quire title is also announced in the following cases: Shepley v. Cowan, 91 U. S. 330, 23 L. ed. 424; Larsen v. Oregon R. & Nav. Co. 19 Or. 240; Faull v. Cooke, 19 Or. 455. See, also Kinney, Irrigation, $210; Union Mill & Min. Co. v. Dangberg, 2 Sawy. 450.

to running waters on public land of the United | And after quoting certain sections of the Civil States for the purposes of irrigation could be Code of Dakota, and setting out the local cusacquired by prior appropriation, as against par- tom of diverting and appropriating the waters ties not having the title of the government, of flowing streams for the purpose of irrigaand the court held that it could. But the question, he concluded the opinion in the following tion of riparian rights was not in the case, and language: "The question is not as to the exthe court said that neither party has any tent of Smith's interest in the homestead as title from the United States; no question as against the government, but whether, as against to the rights of riparian proprietors can there- Sturr, his lawful occupancy under settlement fore arise. It will be time enough to consider and entry was not a prior appropriation which those rights when either of the parties has ob- Sturr could not displace. We have no doubt tained a patent of the government. At present it was, and agree with the brief and compreboth parties stand upon the same footing; hensive opinion of the Supreme Court to that neither can allege that the other is a tres effect." It seems to us that the soundness of that passer against the government without at the decision can scarcely be doubted. While the same time invalidating his own claim." But in court fully recognized the doctrine of prior the later case of Sturr v. Beck, 133 U.S.541,33 L. appropriation of water on the public lands, in ed.761, the question as to the rights of the riparian accordance with the local customs, laws, and proprietor as against an appropriator of the decisions of courts, it announced and estab water did arise, and was determined by the lished the just and equitable rule that the ricourt. The facts were that one John Smith parian rights of a patentee of the government settled on a tract of government land in the attach, by relation, at the very inception of his territory of Dakota in March, 1877, and con- title, and will be protected as against subsetinued to reside thereon until he sold and con- quent appropriation of the water naturally veyed it by warranty deed to one Beck. He flowing over the land. That case, it would made his homestead application or entry on seem, settles the law adversely to the contenMarch 25, 1879, and his final proof May 10, tion of the appellants in this case. The doc1883, and received a patent from the United trine that the rights of a patentee or grantee of States. The waters of a certain creek flowed the government relate back to the first act of in its natural channel across Smith's home-the settler necessary in the proceedings to acstead, and in May, 1880, Sturr went upon that homestead, located a water right thereon, and constructed a ditch by which the waters of the creek were diverted to his own land. Beck went into possession under his deed from Smith, and in 1886 notified Sturr to cease diverting the water and maintaining the ditch, The trial court in this case followed the rule whereupon Sturr commenced an action to en- laid down in the case of Sturr v. Beck, and join Beck from interfering with his alleged other cases above referred to, and, in so doing, water right and ditch, and the use of the water we think.committed no error. But it is claimed of the creek. Sturr claimed the right to divert by appellants that the act of the territorial and use the waters of the stream for the pur- legislature entitled "An Act Regulating Irrigaposes of irrigation by virtue of a prior appro- tion and Water Rights in the County of Yakima, priation, and Beck defended and asked affirm- Washington Territory" (Laws 1873, p. 520), ative relief on the ground of riparian ownership. fully authorized them to divert and use the It will thus be seen that the question there waters of the Ahtanum river as they had done. raised was identically the same as that which is It is perhaps sufficient to say with reference to presented for determination here. In that case that act that the rights of many of the respondit appeared that neither Smith nor his grantee, ents who own riparian lands had attached, unBeck, had ever diverted the waters of the creek der the law as announced in the Sturr Case, from the natural channel prior to the location prior to its passage, and were therefore in no of the alleged water right by Sturr; but wise affected by it. And besides by the first the court unanimously held that Smith's pat- section of that act the respondents were entitled ent related back to the date of his homestead to the use of the water for the purpose of irrifiling, and cut off completely the alleged claim gating their lands "to the full extent of the of Sturr. The learned chief justice, in deliv- soil thereof." Moreover, the doctrine of apering the opinion of the court, after referring propriation applies only to public lands, and to the act of Congress of July 26, 1866 (Rev. when such lands cease to be public, and beStat. § 2339), and the amendatory act of 1870, come private, property it is no longer applicaand quoting from the opinion in Atchison v. ble. Gould, Waters, § 240; Pom. Riparian Peterson, 87 U. S. 20 Wall. 507, 22 L. ed. 414, Rights, § 30; Curtis v. La Grande Hydraulic said: "When, however, the government ceases Water Co. 20 Or. 34, 10 L. R. A. 484. It was to be the sole proprietor, the right of the ri- for the purpose of protecting the rights of apparian owner attaches, and cannot be subse-priators of water for beneficial uses on the pubquently invaded. As the riparian owner has lic lands which had vested and accrued, by the right to have the water flow ut currere virtue of local customs, laws, and decisions of solebat, undiminished except by reasonable consumption of upper proprietors, and no subsequent attempt to take the water only can override the prior appropriation of both land and water, it would seem reasonable that lawful riparian occupancy with intent to appropriate the land should have the same effect."

the courts, that the 9th section of the act of Congress of July 26, 1866, the substance of which is included in § 2339 of the Revised Statutes, was enacted. It was apparent to Congress, and, indeed, to everyone, that neither local customs nor state laws or decisions of state courts could vest the title to public

land or water in private individuals without | Gould on Waters ( 217), where a number of the sanction of the owner, viz., the United English cases are cited; and in Pomeroy on States. The government, being the sole pro- Riparian Rights (§ 125) it is declared that the prietor, had the right to permit the water to be common-law rule that every riparian proprietor taken and diverted from its riparian lands; has an equal right to the use of water as it is but, when it disposed of land without reserv- accustomed to flow, without diminution or ing the water, the latter passed to its grantee alteration, is subject to the well-recognized free from interference thereafter by the grantor. limitation that each owner may make a rea"The object of the section [Rev. Stat. 2339] sonable use of the water for domestic, agriculwas to give the sanction of the United States, tural, and manufacturing purposes; and the the proprietor of the lands, to possessory author there cites several English and many rights, which had previously rested solely upon American decisions in support of that declarathe local customs, laws, and decisions of the tion. See also 2 Washb. Real Prop. 5th ed. courts, and to prevent such rights from being pp. 367, 368; Gould, Waters, § 205; Lux v. lost on a sale of the lands." Jennison v. Kirk, Haggin, 69 Cal. 255, and cases cited: Union 98 U. S. 456, 457, 25 L. ed. 241, 242. Mill & Min. Co. v. Ferris, 2 Sawy. 177.

It is suggested on behalf of the appellants that the use of water for irrigation was practically unknown to the common law. But, while it may be true that it is seldom necessary or desirable to irrigate land in England by ar tificial means, yet it appears that a reasonable use of running streams for that purpose by riparian proprietors is recognized by the courts of that country. It is expressly so stated in

A careful consideration of all the questions raised on this appeal discloses no error and the judgment is therefore affirmed.

Scott, Ch. J., and Gordon, J., concur.
Dunbar and Reavis, JJ., being disquali-
fied, did not sit in this case.
Rehearing denied.

Theodore P.

ILLINOIS SUPREME COURT.

SIDDALL, Jr., by Next | ing a judgment of the Superior Court for Cook Friend, Appt.,

v.

Egbert L. JANSEN et al.

(168 Ill. 43.)

1. The facts may be reviewed by the supreme court of Illinois to the extent of as

certaining whether or not there was such evidence tending to establish plaintiff's declaration as should have been submitted to the jury, where error is assigned to the giving or refusal of an instruction to find for the defendant.

2. An ascending and descending cage of an elevator is such an attraction to children that an unguarded or open door, or one which may readily be opened from the outside, may constitute negligence on the part of the owner when children are allowed to play where they may be injured by it.

County in favor of defendants in an action brought to recover damages for personal injuries alleged to have been caused by defendants' negligence. Reversed.

Statement by Phillips, Ch. J.:

This was an action brought by Theodore P. Siddall, Jr., by his next friend, against Egbert

Jansen and others, composing the firm of Jansen, McClurg, & Co., wholesale and retail booksellers and stationers, in Chicago, to recover damages for an injury received by being struck by a descending elevator of the defendants. The father of plaintiff was an employee of defendants, and the plaintiff, then about five years of age, was playing around the store. In the temporary absence of the parent the child was attracted to an elevator shaft, the door of which was unfastened, and was severely bruised and mangled by the descending cage. The negligence alleged in the declaration charges the defendants with negin-ligently permitting to continue open and unguarded the doorway of the elevator shaft, and the partitioned inclosure surrounding it, and in failing to place fastenings upon the elevator door, so they could be opened only from the inside, and thus be under the entire control of the elevator operator, as is provided by a city ordinance of Chicago. A judgment for $10,000, rendered November 15, 1889, was reversed by the appellate court (41 Ill. App. 279), and on appeal here the judgment of the appellate court was reversed, with directions APPEAL by plaintiff from a judgment of to find facts, or remand the case (143 111. the Appellate Court, First District, affirm-537). The appellate court remanded the

3. Failure to comply with the provisions of an ordinance respecting the doors of elevators will render the owner liable for an jury received in consequence by a child which was rightfully at the place of the injury.

4. Whether a child five years of age is a trespasser or not when playing near an elevator in a store, used by employees and reached through open doors from the main floor of the

store in which the father of the child was employed, is a question for the jury, if the child was rightfully in the store by invitation of the father.

(November 1, 1897.)

NOTE. As to liability for maintaining dangerous | Chicago City R. Co. v. Robinson (Ill.) 4 L. R. A. 127, attractions for children, see Missouri, K. & T. R. See also Moran v. Pullman Palace Car Co. (Mo.) 33 Co. v. Edwards (Tex.) 32 L. R. A. 825, and other cases | L. R. A. 755, and cases there cited. cited in footnote thereto; also some cases in note to i

The defendants owed it to the public, whom they invited to their premises, to keep those premises reasonably safe.

Hart v. Washington Park Club, 157 Ill. 9, 29 L. R. A. 492.

case (51 Ill. App. 74), and on another trial, | L. ed. 410; Parker v. Barnard, 135 Mass. 116, May 6, 1896, the superior court, pursuant to 46 Am. Rep. 450. the first opinion of the appellate court, directed a verdict and entered judgment for the defendants, which the appellate court affirmed in the following opinion: “Ryan v. Armour, Siddall v. Jansen. Per Curiam. Each of these cases, with the names of the parties reversed, has been here before. 61 Ill. App. 314; 51 Ill. App. 74; 41 Ill. App. 279. The cases have now been again tried in accordance with the views of this court heretofore expressed, and still entertained, and therefore the judgments are now affirmed." 67 Ill. App. 102. A certificate of importance was granted by the appellate court, and by appeal the case comes to this court.

Messrs. F. W. Becker and Dale & Francis, for appellant:

The store was a "public place." No effort was made by appellees on the trial to limit or restrict the publicity of the place. What is a "public place?" Ex ei termini, a place for all, for the old and young-like the public streets, which are open to the use of the entire public without regard to what may be the law. ful motives and objects of those traversing

them.

Chicago v. Keefe, 114 Ill. 222, 55 Am. Rep. 860.

This court found no trouble in implying an invitation when one of the defendants entered the Beaurivage Flats, as a visitor merely upon an occupant and not upon the owner, and without any business with the owner, and who while there was injured in an unguarded ele

vator.

Fisher v. Jansen, 30 Ill. App. 91.

The most that can be said is that the father's Degligence contributed to the injury, or, rather, that the concurring negligence of the father and the defendants produced the injury, which is no defense (Carterville v. Cook, 129 Ill. 152, 4 L. R. A. 721), and especially is this the rule where the injury, as here, is the result of an unlawful act-the violation of an ordinance, in which case the original wrongdoer will be held responsible, although other causes may have subsequently arisen and contributed in producing the injury.

Can it be said that the conduct of the defendants was so clearly and palpably correct that all reasonable minds would so pronounce it without hesitation or dissent?

Lake Shore & M. S. R. Co. v. Johnsen, 135 Ill. 641.

Messrs. Mason Brothers, for appellee: The decision of the appellate court is a finality.

Great Western R. Co. v. Haworth, 39 Ill. 346; Chicago & A. R. Co. v. Bonifield, 104 Ill. 223; Rogers v. Chicago, B. & Q. R. Co. 117 Ill. 115; Practice Act, chap. 110, Ill. Rev. Stat. § 88; Brown v. Aurora, 109 Ill. 165; Neer v. Illinois C. R. Co. 138 Ill. 29; Jones v. Fortune, 128 Ill. 518.

Appellees were not guilty of negligence.

Murray v. McLean, 57 Ill. 378; Gibson v. Sziepienski, 37 Ill. App. 601; Chicago & A. R. Co. v. Lammert, 12 Ill. App. 408.

Appellant was himself guilty of negligence. Galena & C. U. R. Co. v. Jacobs, 20 Ill. 478; Chicago, B. & Q. R. Co. v. Lee, 68 Ill. 580; Abend v. Terre Haute & I. R. Co. 111 Ill. 202, 53 Am. Rep. 616; Chicago & A. R. Co. v. Murray, 62 Ill. 326; Chicago City R. Co. v. Wilcox, 138 Ill. 370, 21 L. R. A. 76.

Appellant was in the immediate custody and control of his father, and the father's negligence will defeat appellant's action. The father is the cause of the accident.

Chicago v. Starr, 42 Ill. 176, 89 Am. Dec. 422; Toledo, W. & W. R Co. v. Grable, 88 Ill. 443; Tyler, Infancy & Coverture, 200; Chicago City R. Co. v. Wilcox, 138 Ill. 370, 21 L. R. A. 76; Ohio & M. R. Co. v. Stratton, 78 Ill. 88. The damages awarded in the circuit court are excessive.

Peoria Bridge Asso. v. Loomis, 20 Ill. 235, 71 Am. Dec. 263; Joch v. Dankwardt, 85 Ill. 331; Chicago, B. & Q. R. Co. v. Hazzard, 26 Ill. 373; Chicago & R. I. R. Co. v. McKean, 40 Ill. 218; Chicago City R. Co. v. Henry, 62 Ill. 145; Chicago & N. W. R. Co. v. Jackson, 55 Ill. 492; DeWeick v. Lander, 75 Ill. 93; Laflin & R. Pow-catur v. Fisher, 53 Ill. 407; Bloomington v. der Co. v. Tearney, 131 Ill. 322, 7 L. R. A. 262.

The ordinance, its violation, and resulting injury, presented, at least, a prima facie case, which could not be withdrawn from the jury, for the statute of Westminister gives a remedy by an action on the case to all who are ag grieved by the neglect of any duty created by

statute.

Goodrich, 88 Ill. 558; Andrews v. Boedecker, 17
Ill. App. 213; Illinois C. R. Co. v. Ebert, 74 Ill.
401; Chicago West Div. R. Co. v. Hughes, 87
Ill. 94.

Phillips, Ch. J., delivered the opinion of the court:

We are authorized to review the facts in this case, to the extent of ascertaining whether there was, at the close of the plaintiff's testimony, evidence tending to show the acts of

Couch v. Steel, 3 El. & Bl. 302; St. Louis, J. & C. R. Co. v. Terhune, 50 Ill. 151, 99 Am. Dec. 504; Mechanicsburg v. Meredith, 54 Ill. 84; Il-negligence charged in his declaration, for the linois C. R. Co. v. Gillis, 68 Ill. 317; Chicago & E. I. R. Co. v. Goyette, 133 Ill. 21.

The duty is due, not to the city as a municipal body, but to the public, considered as composed of individual persons, and each person specially injured by the breach of the obligation is entitled to his individual compensation and to an action for its recovery.

Hayes v. Michigan C. R. Co. 111 U. S. 228, 28

reason that at the close of such testimony the trial court, at the request of defendants, gave to the jury a peremptory instruction to find for the defendants. The rule is that where an instruction is offered, at the close of plaintiff's testimony, to instruct the jury to find for the defendant, and error is assigned on the giving or refusal to give such instruction, this court may review the facts, to the

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