E. 711; Ainsworth v. Lakin, 180 Mass. 397, 57 L.R.A. 132, 91 Am. St. Rep. 314, 62 N. E. 746; Fletcher v. Smith, L. R. 2 App. Cas. 781, 37 L. T. N. S. 367, 47 L. J. Exch. N. S. 4, 26 Week. Rep. 83, 5 Mor. Min. Rep. 78. The finding by the jury that the work on the trench was not done negligently does not affect the plaintiff's case.

Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 224; Ball v. Nye, 99 Mass. 582, 97 Am. Dec. 56; Fitzpatrick v. Welch, 174 Mass. 486, 48 L.R.A. 278, 55 N. E. 178; Cabot v. Kingman, 166 Mass. 403, 33 L.R.A. 45, 44 N. E. 344; Perry v. Worcester, 6 Gray, 544,

66 Am. Dec. 431.

Mr. F. Delano Putnam, for defendant: The evidence does not show that the plaintiff has any cause of action at common law.

Min. Rep. 142; Baird v. Williamson, 15 C. B. N. S. 376, 33 L. J. C. P. N. S. 101, 10 Jur. N. S. 152, L. T. N. S. 412, 12 Week. Rep. 150, 4 Mor. Min. Rep. 368.

Compensation is to be given only for such "injuries" as would have been the basis of an action at common law.

Caledonian R. Co. v. Walker, L. R. 7 App. Cas. 259, 46 L. T. N. S. 826, 30 Week. Rep. 569, 46 J. P. 676; Caledonian R. Co. v. Ogilvy, 2 Macq. H. L. Cas. 229; Pennsylvania R. Co. v. Marchant, 119 Pa. 541, 4 Am. St. Rep. 659, 13 Atl. 690; Brittle Silver Co. v. Rust, 10 Colo. App. 463, 51 Pac. 528; Smith v. Wilcox, 47 Vt. 537; Shrunk v. Schuylkill Nav. Co. 14 Serg. & R. 71.

De Courcy, J., delivered the opinion of the court:

The easement in an existing highway permits public uses on and beneath the surface of the way of a far-reaching and ever increasing character. Pipes, sewers, and sub

Greenleaf v. Francis, 18 Pick. 117; Davis v. Spaulding, 157 Mass. 431, 19 L.R.A. 102, 32 N. E. 650; Acton v. Blundell, 12 Mees. & W. 324, 13 L. J. Exch. N. S. 289, 15 Mor. Min. Rep. 168; Chasemore v. Richards, 7 H. L. Cas. 349, 29 L. J. Exch. N. S. 81, 5 Jur. N. S. 873, 7 Week. Rep. 685, 1 Eng. Rul. Cas. 729; Smith v. Kenrick, 7 C. B. 515, 18 L. J. C. P. N. S. 172, 13 Jur. 362, 6 Mor.

into his neighbor's soil, and thus injure his neighbor's well and cellar.

A waterworks company was held guilty of a trespass in Odell v. Nyack Waterworks Co. 91 Hun, 283, 36 N. Y. Supp. 206, where, by closing the overflow pipe in its reservoir, it caused the waters to overflow a well on its premises, and in that manner unlaw fully and wrongfully forced waters through a subterranean course into an adjoining landowner's well, causing the wall and arch thereof to loosen and cave, injuring plaintiff's premises. "While the defendant has the legal right to maintain a reservoir upon its premises, it was bound to so use and guard the same that it would not become a source of annoyance or damage to the plaintiff and others."

So, where one dug out a cellar and rain water collected there and percolated into the cellar of an adjoining landowner, he was held liable for the damages, in Snow v. Whitehead, 53 L. J. Ch. N. S. 885, L. R. 27 Ch. Div. 588, 51 L. T. N. S. 253, 33 Week. Rep. 128. This case comes within the decision of Rylands v. Fletcher, L. R. 3 H. L. 330, 37 L. J. Exch. N. S. 161, 19 L. T. N. S. 220, 6 Mor. Min. Rep. 129, 1 Eng. Rul. Cas. 235, affirming L. R. 1 Exch. 265, 12 Jur. N. S. 603, 14 Week. Rep. 799, discussed at length on page 541 of note in 15 L.R.A. (N.S.) supra, which turns on the principle that anyone who collects upon his own land

the land in the public street for which the owner of the fee can claim damages. Cheney v. Barker, 198 Mass. 356, 16 L.R.A.(N.S.) 436, 84 N. E. 492; Sears v. Crocker, 184 Mass. 586, 100 Am. St. Rep. 577, 69 N. E. 327; Bishop v. North Adams Fire Dist. 167 Mass. 364, 45 N. E. 925; Lincoln v. Com. 164 Mass. 1, 41 N. E. 112. As the appropriation of the space below the surface is not an invasion of his common-law rights,

water, or anything else, which would not in the natural condition of the land be collected there, ought to keep it at his own peril, and that if it escape, he is liable for the consequences.

So, where a defendant landowner allowed rain water to accumulate in an excavation on his lot, he was held liable in Crommelin v. Coxe, 30 Ala. 318, 68 Am. Dec. 120, for damages caused by the water percolating into an adjoining lot owner's cellar; and he was liable notwithstanding the excavation was there when he purchased the lot from one who owned both lots, and he simply permitted the property to remain in the state in which it was when he purchased. Generally, as to connection with, or participation in, nuisance, essential to render one responsible therefor, see note to Adler v. Pruitt, 32 L.R.A.(N.S.) 889; and as to necessity of notice to render owner of premises liable for continuing a nuisance created by predecessor, see notes in 27 L.R.A. (N.S.) 164, and 50 L.R.A. (N.S.) 929.

So, a recovery was allowed in Nelson v. Godfrey, 12 Ill. 20, for damages resulting to plaintiff by reason of an excavation for a coal cellar made by defendant in the sidewalk in front of his premises, through which the water from the gutter of the street passed into defendant's cellar, and then through several other cellars into that of the plaintiff, and did the damage com

We do not undertake to pass upon the question whether this provision was designed to give the plaintiff a cause of action where none existed at common law, and to afford compensation for damage necessarily caused by work which was authorized by the statute and was executed in a reasonably proper manner. The present action is one of tort for alleged negligence. The jury specially found that the work on the trench was not done negligently; hence no case of liability at common law was made out, even assuming that an action of tort would lie for negligent acts done in carrying out the purposes of the statute. See Westcott v. Boston, 186 Mass. 540, 72 N. E. 89. We cannot say that the judge was wrong in directing a verdict for the defendant; and under the terms of the report, based on the stipulation of the parties, the entry must be: Judgment for the defendant.

WYOMING SUPREME COURT.

RROR to the District Court for Sheridan County to review a judgment in plaintiff's favor in an action brought to recover the amount alleged to be due on a promissory note. Affirmed.

The facts are stated in the opinion. Messrs. Burgess & Kutcher for plain

The precise question presented in ACME COAL Co. v. NORTHRUP NAT. BANK, as to whether typewritten words or figures are to be deemed written or printed matter for purposes of the rule that written, shall prevail over printed, provisions in case of a conflict, does not seem to have been discussed elsewhere.

Typewriting, however, is stated to be a substitute for and the equivalent of writing, in Deep River Nat. Bank's Appeal, 73 Conn. 341, 47 Atl. 675, where a letter dictated to a stenographer and typewritten is held a sufficient compliance with that section of the General Statutes providing that, "in actions against the representatives of deceased persons, no acknowledgment or promise shall be sufficient evidence of a new or continuing contract to take the case out of the statute of limitations, unless the same be contained in some writing made or signed by the party to be charged thereby." And it has been held that typewriting is not printing within the court rule requiring abstracts of records and briefs to be

Mr. H. N. Gottlieb, for defendant in

error:

Alleged uncertainty in the amount of interest payable did not affect the character of the instrument as a negotiable note.

2 Cyc. 142-144; 2 Am. & Eng. Enc. Law, 2d ed. p. 206 and notes; Busjahn v. MeLean, 3 Ind. App. 281, 29 N. E. 494; Phillips v. Crips, 108 Iowa, 605, 79 N. W. 373; Durant v. Murdock, 3 App. D. C. 114; Thompson v. Hoagland, 65 Ill. 310; Cramer v. Joder, 65 Ill. 314.

printed. Carroll v. Holmes, 19 Ill. App. 564; Johnson County v. Bryson, 26 Mo. App. 484; Franco-American Loan & Bldg. Asso. v. Joy, 61 Mo. App. 162; Keating v. Lewis, 74 Mo. App. 226; Buckingham v. Reid, 5 Idaho, 312, 48 Pac. 1069; Sunday v. Hagenbuch, 18 Pa. Co. Ct. 540 (typewritten bill); National Bank v. Lovenberg, 63 Tex. 506; State v. Oleson, 9 Wash. 186, 37 Pac. 419.

And there seems to be in Buffalo & St. M. R. Co. v. Philadelphia & E. R. Co. 174 Pa. 263, 34 Atl. 561, a recognition of the fact that typewriting is not printing, and that in equity proceedings the one cannot be substituted for the other.

In Sunday v. Hagenbuch, 18 Pa. Co. Ct. 540, it is stated in the syllabus that under the act of June 18, 1895, P. L. 125, typewriting is given the same legal force, meaning, and effect as writing.

But typewritten notices are in State ex rel. Coleman v. Oakland, 69 Kan. 784, 77 Pac. 694, held sufficient to meet the statutory requirement as to posting printed notices of application to organize city of third class. J. D. C.

Testimony of defendant Craig was properly stricken out.

The defendants contend that the note is not a negotiable instrument by reason of an uncertainty in the rate of interest it bears appearing on its face, there being a conflict between the rate as inserted in the printed blank by the typewriter, and that with pen and ink. The rule of construction provided by our statute (it being what is

ment act) is, where there is a conflict between the written and printed provisions of the instrument, the written provisions prevail. Comp. Stat. 1910, § 3175, subdiv. 4. Had the figure "7" been printed in the blank as it was printed on a printing press,

This is an action on a promissory note brought by the defendant in error against the plaintiffs in error. Trial was had to the court, and judgment rendered in favor of plaintiff below, and defendants bring error. The note was given by the Acme Coal Company, and indorsed by Ora Darnall and A. K. Craig, and payable to the order of the United States Iron Works Company. and by said company indorsed to the bank. The note bears date November 9, 1912, is for $1,589.15, due ninety days after date, with interest from date. A blank printed form was used, and the blanks filled in on a typewriter, and in the blank space for the rate of interest, after the printed word "at," the typewritten figures and words are "7 per cent from date." There is a circle drawn around the figure 7 with a pen and ink, and above it is the figure 8, also made with pen and ink. The defendants denied the execution of the note, but averred that if they did execute it, it was given in renewal of a former note dated August 3, 1912, which was given for a part of the purchase price of certain pit cars for use in the coal company's mines; that said cars were purchased from the iron works company by the coal company under an agreement that they were to be of the same kind and in all substantial respects like cars formerly purchased by the coal company from the iron works company; alleged certain defects in the cars which could not be discovered by inspection, but which the iron works company knew or should have known, and that the cars were practically worthless. That the cars were delivered during the year 1911 and fore part of the year 1912. That the plaintiff knew or should have known that said cars were defective and useless and worthless to the coal company, and if it purchased the note in suit it did not do so in good faith, but for the purpose of defeating the coal company's claim for damages against the iron works company.

the rule of the statute would unquestionably apply. The question here is: Is that portion of this note which is typewritten to be considered as printed, or as written? When we consider what we conceive to be the reason for the rule as laid down in the statute, and the connection in which the words "written" and "printed" are there used, we think the question is not difficult of solution. The printed form or blank is used for convenience, and is prepared in advance of the final agreement between the parties; and when a conflicting provision is afterward inserted therein in writing, the natural and reasonable presumption is that the later and written provision expresses the true intent of the parties. The word "writing" is defined in the Century Dic tionary: "Specifically, as distinguished from printing, stamping, incision, etc., the act or art of tracing graphic signs by hand on paper, parchment, or any other material, with a pen and ink, style, pencil, or any other instrument."

And the word "print" is defined by the same authority: "Specifically, to stamp by direct pressure, as from the face of types, plates, or blocks covered with ink or pigments; impress with transferred characters or delineations by the exercise of force, as with a press or some other mechanical agency."

And "typewriting" is defined: "The process of printing letter by letter by the use of a typewriter." When, as in this case, it clearly appears from an inspection of the instrument that the blank form used was "printed," using that term in its common and ordinary sense, and the blanks therein are filled in on a typewriter, and it then further appears that there is a conflict between a typewritten provision and one afterward made with pen and ink, we think the typewritten portion of the instrument must be considered as "printed" within the meaning of the statute. We do not wish, however, to be understood as holding that in all cases and under all circum