Mettlestadt agt. The Ninth Avenue Railroad Co.

driver is not certain, although there was evidence tending to prove it of such a character, that undisputed as it was, in the absence of the testimony of the driver, that would have justified the jury in so finding. This question should have been submitted to the jury.

The evidence also shows that the car was moving at a slow rate of speed, and although the plaintiff was upon the top of the car, it was a question for the jury to say whether the plaintiff was guilty of a want of ordinary care and caution, in descending from the car under such circumstances. It is often quite as safe to step from a car in motion, as if it were stationary; depending upon the rate of speed at which it is moving. A car may be under such rapid headway as to make it imminently dangerous for passengers to leave it. It is not any particular rate of speed by which the conduct of the passengers is to be regulated in entering or leaving cars, that governs; but the rule is, that of exercising ordinary care and caution under the circumstances surrounding them.

It cannot, therefore, be said that the plaintiff, as a matter of law, was guilty of negligence in leaving the car while in motion, even if done voluntarily. Nor can it be successfully contended, that being upon the top of the car was evidence of negligence, for he was called up there by the driver, the car being full in the inside.

case.

Thus far we have considered the case upon the evidence of the plaintiff, in connection with the undisputed facts of the We think the evidence of the plaintiff was susceptible of a construction entirely consistent with such want of negligence on his part, as to have required the submission of the case on his part to the jury.

But there is another view of this case which is equally controlling. The witness Hass, testified: "I saw the driver take hold of the boy by the head and by the cap; he took his cap away, then he let him have the cap; then he hit him with the whip; the car was going at slack rate of speed; I saw the boy trying to get off; after the driver hit the boy, he tried to dodge the blow of the whip (probably

In the matter of John H. Lockwood.

the second blow), and by so doing, he fell and got under the car."

This evidence should have been submitted to the jury in connection with the testimony of the plaintiff; for whether this conduct of the driver was willful or negligent, or otherwise, if the plaintiff was without fault, the defendants are liable for such injuries done while driving a vehicle for the conveying of passengers, in the same manner as the driver would be liable himself (1 R. S. §§ 6 and 7, p. 649).

If the jury had found upon these facts, that the act was willful or wanton on the part of the driver, the plaintiff would have been entitled to recover. We must, therefore, sustain the exceptions taken by the plaintiff, and order a new trial, with costs to abide the event. Judgment reversed.

CITY COURT OF BROOKLYN.

IN THE MATTER OF THE HABEAS CORPUS IN BEHALF OF JOHN H. LOCKWOOD.

The service of a summons upon a member of a military company, to appear before a court martial, must be made personally, or by leaving such summons at the residence of the party to be served. A service made by leaving the summons at the office or place of business of the party, does not give the court martial jurisdiction of the matter.

March Term, 1867.

Before Hon. GEORGE G. REYNOLDS, City Judge.

THE petitioner was a member of the Thirteenth Regiment National Guard, S. N. Y., and was guilty of certain delinquencies in non-payment of fines, and non-attendance at parades and drills.

A court martial was ordered, pursuant to the laws of 1862, and the petitioner was summoned to appear before the court martial and show cause why he should not be fined.

The petitioner failed to appear before the court martial, and was fined the sum of $36, and a warrant was issued for

In the matter of John H. Lockwood.

the collection of the fine, and in default of sufficient goods and chattels, from which to collect said fine, to take the body of the petitioner. Under said warrant petitioner was arrested. An application was made for a writ of habeas corpus, which was granted, and petitioner was brought before Hon. GEORGE G. REYNOLDS, City Judge.

THOMAS E. PEARSALL, and

JESSE JOHNSON, for petitioner,

Claimed that the proceedings of the court matial were void, because the summons to appear before the court martial was served upon a person in charge of the office of the petitioner, when the law requires the same to be served "personally, or by leaving such summons at the residence of the party to be served." (See Sess. Laws of 1862, chap. 477, $ 210.)

P. S. CROOK, for the military authorities.

REYNOLDS, City Judge. The prisoner is discharged on the ground that the court martial did not acquire jurisdiction to try the relator.

The statute (Laws of 1862, chap. 477, § 210), requires the service of summons to appear before the court to be made personally or by leaving such summons at the residence of the party to be served.

In the case of the relator, the summons was left at 22 Court street, which is not shown to have been his residence, and in fact was conceded on the argument, was his office.

The relator did not appear in response to the summons, and his case was never properly before the court martial for trial.

Babcock agt. Utter.

COURT OF APPEALS.

HENRY H. BABCOCK and others, respondents agt. FRANCIS A. UTTER, impleaded with others, appellant.

A mere license is in its very nature revocable.

If a parol license be coupled with a grant, so as to be essential to the enjoyment of the thing granted, then the license may become irrevocable.

But if a parol license be coupled with a grant by parol of that which can only be effectually granted by deed, then the license remains a mere license, and, therefore, capable of being revoked.

▲ riparian owner, by license of owners above, on the same stream, enters upon their lands, and constructs there a dam and a canal to flow on his lands and work his mill: Held, that the license was revocable.

The contrary doctrine considered to be equally in conflict with the common law rule that an easement can only be created by deed; with the statute of frauds, prohibiting the conveyance of any interest in lands other than short leases, without writing; and with the statute requiring deeds for the conveyance of freehold interests.

Nor is the licensor's right of revocation impaired by the fact that the licensee, relying upon the license, had erected expensive works upon his own land, the value of which depended on the use of the canal and dam.

The principle that the owner of lands who encourages another to expend money upon them under an erroneous opinion of title, is estopped from afterward asserting his legal rights, is inapplicable to this case. Where there is no fraud on the part of the owner of the land, and the person making the expenditure knows the state of the title, he makes it at his peril, and acquires no equitable rights against the owner thereby. Mumford agt. Whitney (15 Wend. 380) reaffirmed Renick agt. Kem (14 S. & R. 267), disapproved.

Where one, in pursuance of a license, enters upon another's land, and constructs a dam and canal, and keeps the same in repair, there is no adverse possession; there can be, therefore, no presumption of a grant arising from lapse of time. A license is a merely personal right, and is not susceptible of conveyance. A mortgage, therefore, of a mill, the water power of which depends partly upon parol license and partly upon grant, will not give the mortgagee title to the former part.

But where the mortgage conveys the premises upon which the mill stands, describing them by metes and bounds, but contains no reference to the mill, nor the word "appurtenances," or any equivalent expression, it conveys, nevertheless, such right to the water power as the mortgagor possesses, not depending upon mere license, although such right may entend beyond the premises actually described in the mortgage. The instrument must be interpreted as though executed and delivered in view of the premises, and, therefore, to convey the mill, as such, with whatever gave it its value as a mill, and which the grantor had power to convey.

Where the owner of land upon a mill stream, ad medium filum aquæ, conveys the land by metes and bounds, "beginning at a stake on the bank of the river," running thence by courses and distances around the farm, until it comes again "to

Babcock agt. Utter.

the U. river," and runs "thence down the bank of the river as it winds and turns, to the place of beginning," the title to the river and the land covered by it, remains in the grantor.

March Term, 1864.

THIS action was commenced by the plaintiffs in the supreme court in equity, in September, 1847, to have their right to a stream of water declared and established; to obtain a perpetual injunction against the diversion of the stream from their factory, and to recover damages for previous diversions.

The facts appearing from the pleadings and the report of the referee, before whom the cause was tried, so far as they have any material bearing upon the questions presented on the appeal, are substantially as follows:

On and prior to April 1, 1820, William Utter, one of the defendants, was the owner of eleven acres of land in the town of Plainfield, Otsego county, and also of another lot of four acres, north of and adjoining the eleven acres; both pieces being bounded on the west by the west branch of Unadilla river. In the year 1821, said Utter, in contemplation of erecting carding and cloth-dressing works on the eleven acres, constructed a dam across said west branch, on lands some distance north of his own, which were owned by Henry Clarke, on the west side, and by Isaiah Hilliard, on the east side of said branch.

During the same year he constructed a canal from said dam, southerly across the lands of said Hilliard, of Thier Johnson, and the two pieces of four and eleven acres before mentioned, to the southerly side of the eleven acres, for the purpose of propelling machinery thereafter to be placed on said premises, with water to be drawn from the dam, through said canal.

In 1821 or 1822, he erected on the eleven acres, a saw mill, and carding and cloth-dressing works, and placed therein machinery proper to be used in such works, and put the same in operation, the propelling power being the water drawn from the dam through said canal.

In 1824, he obtained from Isaiah Hilliard, a lease for the term of ten thousand years, of three-quarters of an acre of