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view thus: “Every man is responsible criminally for upon an application for a summons against Alfred G. what of wrong flows directly from his corrupt inten- Vance, for “That he, the said Alfred G. Vance, did tions; but no map intending wrong is responsible for maliciously publish of her, the said Emma Vance, the an independent act of wroug committed by another. following defamatory libel in the Daily Telegraph of If one person sets in motion the physical power of an. the 14th November, 1885, viz. : “Mr. Alfred G. Vance, otber person, the former is criminally guilty for its comedian and vocalist, in answer to an advertisement results. If he contemplated the result, he is answer- that appeared in last Tuesday's issue of this paper, able, though it is produced in a manner he did not informs his friends and the public that the person ad contemplate." 1 Bish. Crim. Law, $ 641.

vertising is in no way related to himself or family ;' The result aimed at by the respondent was sexual meaning thereby that she, the said Emma Vance, was intercourse between Reagan and his wife, and the evi. not bis wife, and disparaging her in her reputation as dence of it for his use in a divorce suit. His bargain a married, respectable woman, and tending to bring with Reagan was to fix it so that he could catch Rea- her into ridicule and contempt as a person who had gan “in bed with her, or aboard of her.” He was not lived with the said Alfred G. Vance under the preparticular in his agreement how this was to be accom- tense that she was his wife, whereas she was his misplished-whether by force or his wife's full consent. He tress, and in no way related to him." stood by and saw the force used. It is evident he At the time of the publication of this alleged libel sanctioned it, and under the circumstances this sanc- Emma Vance was, and still is, the wife of Alfred G. tion was an encouragement and assistance to Reagan. Vance. The result bargained for was obtained by his corrupt

Emma Vance tendered herself before the lord mayor agreement in the first instance, and by his presence to prove the publication of the alleged libel. The and sanction of the evil act. If he had not been pres- lord mayor refused to grant & summons, upon the ent at all, I think he would have been guilty, as the ground that Emma Vance was the wife of Alfred G. result was desired and profited by, though it might Vance, and could not under the circumstances prosehave been accomplished by force when he intended it cute or give evidence against her husband. should be obtained without it. Not only was he pres- W. Baugh Allen (Poland with him), for lord mayor, ent, but by his silence and passiveness when his wife showed cause. was defending her honor, and his conduct when he rushed into the room and afterward, the irresistible Crispe, in support of the rule. conviction is forced upon my mind that the purpose of his agreement with Reagan, and the object of his

SMITH, J. We are of opinion that this rule should presence in the house, was to obtain evidence of the

be discharged. It cannot be doubted that by the law sexual intercourse of his wife with anotber than him

of England, before the passing of the Married sell, and that he cared not how such intercourse was

Women's Property Acts in 1870, 1882 and 1884 (33 & 34 obtained. I am reasoning now upon the evidence of

Vict., ch. 93; 45 & 46 Vict., ch. 75; aud 47 & 48 Vict., the wife and Reagan; and if their testimony be true,

ch. 14), except in the cases hereinafter mentioned, a of which I am not to judge, the respondent is guilty

husband or wife could not take criminal proceedings as charged, under every principle of law as well as

against each other. From the earliest time it has morals.

been held that a feme covert was not guilty of felony The court correctly charged the jury that if they

in stealing her husband's goods, the reason being that

husband and wife were considered but as one person found beyond a reasonable doubt that there was an

in law. See 1 Hale P. C. 514. Upon the same princiagreement betweeu Chapman and Reagan that Reagan should "be caught by Jerry Chapman in bed with

ple it was held that a husband could not grant lands Mrs. Chapman, or on board of her, as the witness

to a wife, for the maxim of the law was “that a husReagan puts it, and in pursuance of that agreement

band and wife are one person (Firebrass v. Pennant, Reagan committed the crime of rape upon Mrs. Chap-2 Wils. 254), and per Lush and Field, JJ., in Phillips man, and Jerry Chapman, the defendant, was present

v. Barnet, 34 L. T. Rep. (N. S.) 177 ; 1 Q. B. Dir. 440, in an adjoining room, in pursuance of that agreement

441. with the door partly open, and witnessed and sanc

It was also the law of England, before the passing of tioned the act of rape when it was committed, then

the Married Women's Property Acts, that a husband the defendant was guilty of rape.”'

and wife in a criminal case (except as hereinafter [But the conviction was set aside on another ground.) give evidence for or against each other; and until the

mentioned, and in cases of high treason) could not

passing of the 16 & 17 Vict., ch. 83, could not have given MARRIAGE LIBEL - CRIMINAL PROCEEDINGS

evidence for or against each other, even in a civil suit. BY WIFE AGAINST NUSBAND.

There were however exceptions recognized by the law to the above rule. The question for our determina

tion is whether the present case, which is that of a QUEEN'S BENCH DIVISION, APRIL 5, 1886.

wife seeking to prosecute her husband for a defama

tory libel, comes within the exception or not. Reg. v, LORD MAYOR OF LONdox.*

of opinion that the exceptions are confined to those The Married Women's Property Acts do not enable a married cases in which person il injuries have been effected by

woman to take criminal proceedings against her husband violence or coercion by the husband upon the wife or for defamatory libel.

wife upon the husband. See Phil. Ev. (10th ed.) 83. 'HIS was a rule calling upon the lord mayor of Lon

It is upon this ground that it has been held that a bus. don and Albert G. Vance to show cause why the

band and wife, as the case may be, can prosecute and lord mayor should not proceed to hear and determine give evidence against each other in cases of batteries, the matter of an application by Emma Vance, other

assaults and other personal injury. This, as it appears wise Stevens, for a summons against the said Alfred

to us, is the law laid down in Reeve v. Wood, 5 B. & S. G. Vance for a defamatory libel alleged to have been

364. Upon this principle it is that the two cases of abpublished by bim of and concerning the applicant.

duction (Reg. v. Yore, 1 Jebb & Symes, 563; and Reg. v. Ou the 25th of November, 1885, Emma Vance laid an

Wakefield, 2 Lew. C. C. 279) would seem to have been information and complaint before the lord mayor

decided; for as pointed out by Crompton, J., in Reeve

v. Wood, 5 B. & S. 364, there might have been consid* 54 L. T. Rep. 761.

ered to bave been what was equivalent to an actual

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personal injury to the woman herself in those cases. wife criminally prosecute a husband or give

evidence The following passage in the judgment of Blackburn, against him upon a prosecution for a personal libel J., in the case of Phillips v. Barnet, is very apposite to upon herself. We therefore discharge this rule, with the matter in hand. The learned judge there says: costs. “There can be no doubt that if a wife receives bodily Solicitor for applicant, Heritage. injury from the hands of her husband, he is liable to

Solicitor for respondent, City Solicitor. criminal proceedings for a felony or a misdemeanor, as the case may be; and in the case of an ordinary assault it is quite clear that the wife has a right for her protection to obtain articles of the peace against her CONSTITUTIONAL LAW-MINING COAL-STAThusband."

UTE COMPELLING MEASUREMENT OF In our judgment the exception only extends to the

COAL BY WEIGHT AS BASIS class of cases where bodily injury has been received

OF WAGES. by the wife or husband, as the case may be. No case has been cited at the bar, nor are we aware of any, in which the exception has ever been extended beyond

SUPREME COURT OF ILLINOIS, JUNE 12, 1886. that above enunciated; and it is worthy of remark, that if the law be as was contended by the applicant,

MILLETT V. PEOPLE.* no trace of authority to support her position can be A statute providing for the weighing of coal at the mines, readduced in her behalf. It was then argued however quiring the owners and operators of mines to provide that even if the present case does not come within the scales, and weigh all coal taken out, and make such present exception as the law stood before the passing weight the basis of wages, is unconstitutional. of the Married Women's Property Act in 1870, yet it comes within the existing act of 1882, and that by vir- APPEAL from St. Clair. to prosecute her husband for a libel upon her reputa

Wilderman & Hamill, for appellant. tion and credit. It was said that by section 12 of the act of 1882 it was enacted that every woman, whether George Hunt, Atty.-Gen., and R. D. W. Holden, married before or after the passing of the act, should State's Atty., for People. have against her husband the same remedies and redress by way of criminal proceedings “for the protec

SCHOLFIELD, J. The defendant was indicted and tion and security of her own separate property, as if convicted of failing, as the agent of the owner of a such property belonged to her as a feme sole ;and

certain coal mine, to cause to be furnished and placed that the present criminal proceeding against her hus

upon the railroad track, adjacent to the coal mine, a band for libel was for the protection and security of

track scale of standard measure, upon wbich to weigh her separate property, she being a vocalist.

the coal hoisted from the mine, as provided by sectiou It was argued before us, that it having been stated by mine," approved June 14, 1883, and the several seo

1 of “An act to provide for the weighing of coal at the Breit, J., during the argument in the case of Summers

tions to amend sections 2,3 and 4 of that act, approved v. City Bank, supra, under section 11 of the act of 1870 that a wife could sue her husband for a libel upon her

June 29, 1885. in her trade, and therefore it necessarily followed that

We held in Jones v. People, 110 Ill. 590, that it was she could criminally prosecute bim in a case like the

competent to show, in defense of a person indicted

under the san present. It seems to use that the argument is wholly mandatory act of June 29, 1885, that at the time the

action, before the approval of the fallacious. First, we would point out that under sec. tion 12 of the act of 1882, which is the act now in force

act took effect, and long prior thereto, the corporation (it was equally so under section 11 of the act of 1870),

in that case owning and operating the coal mine had a proceedings, whether civil or criminal, can only be

contract with all the men employed to mine coal in

that mine, during that period to receive as the wages taken by wife against husband for the protection and security of her own separate estate. How can crimis for their labor from said coal company, the sum of 40 nal proceedings for a personal libel be said to be for

cents per box for each box of coal mined and taken the protection and security of her own separate prop

from said mine; that all the persons employed in the

mine to mine coal for said company had always been erty? Libel on an individual is, and always has been,

and were then perfectly satisfied to work under said regarded as both a civil injury and a criminal offense.

contract; and that they did not want the coal taken The person libelled may pursue his remedy for dam

from the mine weighed as a basis upon which to comages or prefer an indictment; he may both sue for damages and indict. It is ranked among criminal of

pute their wages, etc. It was, in considering this fenses because of its supposed tendency to arouse an

question, among other things, then said: “Although

section 2 does provide that the weight determined by gry passions, provoke revenge, and thus endanger the public peace. See per Lush, J., Reg. v. Holbrook, 39 weighing on the scales furnished shall be considered

the basis upon which the wages of persons mining coal L. T. Rep. (N. S.) 530; 4 Q. B. Div. 46.

shall be computed, we do uot regard this as requiring How can a prosecution for a libel, which is criminal

in all contracts for the mining of coal the wages of the only because of the tendency above pointed out, be

miners must be computed upon the basis of the weight said to be for the protection and security of the sepa

of the coal mined. That would be a quite arbitrary arate estate? It seems to us impossible to so hold, provision – seemingly an undue iriterference with even if it may hereafter be held (upon which we give men's rights of making contracts — and we cannot asno opinion) that an action for libelin & case like the

cribe to the Legislature the making of such an enactpresent can be maintained by a wife against a hus

ment unless it be plainly declared, which is not done band. It seems to us moreover, looking at the com

in this case. plaint made, that it would be impossible to hold the

The second section of the mandatory act, approved separate estate, as contemplated by the statute, was

June 29, 1885, requires that all chal produced in ever bere in jeopardy. What was damaged, if any.

this State shall be weighed on the scales, as provided thing, was the fair fame of the applicant, and that, in

in section 1 of the act approved June 14, 1883, and that our judgment, is not separate estate.

a correct record of the same shall be kept in a wellWe are of opinion, for the reasons above stated, that neither as the law stood prior to 1870, nor since, can a

7 N. E. Rep'r, 631.

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bound book furnished by the owner, agent or opera- doubt might also arise whether a regulation made for tor of such mine for that purpose, by a competent any one class of citizens, entirely arbitrary in its charperson, at the expense of such owner, agent or opera- acter, and restricting their rights, privileges or legal tor; said record to be subject to the inspection (at all capacities in manner before unknown to the law, could reasonable business hours) of the miner, operator, car- be sustained. Distinctions in these respects should be rier, land-owner, adjacent land-owner, member of the based upon some reason which renders them importbureau of labor statistics, mine inspectors, and all ant-like the want of capacity in infants and insane others interested.

persons; but if the Legislature should undertake to Section 3 provides that it shall be lawful for the provide that persons following some specified lawful miners employed in any coal mine or colliery in this trade or employment should not have capacity to State to furnish a check-weigher at their own expense, make contracts or to receive conveyances, or to build whose duty it shall be to balance said scales, and see such houses as others were allowed to erect, or in any that the coal is properly weighed, and keep a correct other way to make such use of their property as was account of the same, and for this purpose he shall have permissible to others, it can scarcely be doubted that the access at all times to the beam box of said scales while act would transcend the due bounds of legislative such weighing is being performed.

power, even if it did not come in conflict with express The fourth section provides that a fine, or fine and constitutional provisions. The man or the class forimprisonment, as prescribed, shall be enforced on any bidden the acquisition or enjoyment of property in owner or agent operating a coal mine failing to com- the manner permitted to the commuuity at large ply with these provisions. Another section provides would be deprived of liberty in particulars of primary that all contracts for the mining of coal in which the importance to his or their pursuit of happiness." weighing of the coal, as provided for in that act, shall See also Budd v. State, 8 Humph. 483, where the secbe dispensed with, shall be null and void.

tions of the act incorporating the Union Bank, which The court, at the instance of the people, instructed provided that if any of the officers, agents or servants the jury that since the first day of July, 1885, the law of that bank should embezzle the funds of the bank, probibits tho making of any contracts between the or make false entries, they should be guilty of felony, operators of the coal mines and the miners in which was held unconstitutional, because it did not apply the weighing of coal, as provided by law, is sought to generally to officers, agents or servants of banks combe avoided, and the court refused to instract the jury | mitting like offenses; and Wally's Heirs v. Kennedy, 2 that “if they believed from the evidence that the com- Yerg. 554, where an act authorizing the court to dispany for which the defendant is working does not sell miss Indian reservation cases, where prosecuted for nor offer to sell coal by weight at its mine at which de- the use of another, was held unconstitutional. In the fendant is employed, and that it has contracts with last case the court said: “The rights of every individall the mon employed in its mine to mine coal at 25 or ual must stand or fall by the same rule or law that 20 cents per box, then the jury should find the defend governs every other member of the body politic or ant not guilty.” There was evidence before the jury land under similar circumstances; and every partial on which to predicate this instruction.

or private law which directly proposes to destroy or The question is thus presented whether it is compe- affect individual rights, or does the same thing by aftent for the General Assembly to single out owners fording remedies leading to similar consequences, is and operators of coal mines as a distinct class, and pro- unconstitutional and void. Were it otherwise, odious vide that they shall bear burdens not imposed on other individuals or corporate bodies would be governed by owners of property or employers of laborers, and pro- one law; the mass of the community, and those who hibit them from making contracts which it is compe- made the law, by another; whereas a like general law, tent for other owners of property or employers of la- affecting the whole community equally, could not borers to make.

have been passed." It is declared in section 2, article 2, of our Constitu- On like principles also is People v. Marx, 99 N. Y. tion, that "no person shall be deprived of life, liberty 377; 8. C., 52 Am. Rep. 34. or property without due process of law.” And section What is there in the condition or situation of the 13 of the same article provides that private property laborer in the mine to disqualify him from contracting shall not be taken or damaged for public use without in regard to the price of his labor, or in regard to the just compensation. The words “due process of law" mode of ascertaining the price? And why should the in this connection are held to be synonymous with the owner of the mine, or the agent in control of the mine, words, "the law of the land” (Cooley Const. Lim. not be allowed to contract in respect to matters as to [1st ed.) pp. 352, 353), and this means general public which all other property owners and agents may conJaw, binding upon all the members of the community, tract? under all circumstances, and not partial or private Undoubtedly if these sections fall within the police laws affecting the rights of private individuals power, they may be maintained on that ground; but or classes of individuals. Janes v. Reynolds, it is quite obvious that they do not. Their require2 Tex. 251. See also Wynehamer People, ments have no tendency to insure the personal safety 13 N. Y. 432; Vanzant v. Waddel, 2 Yerg. 269. “Every of the miner, or to protect his property or the prop

says Cooley (Const. Lim. [1st ed.] p. 391), "has erty of others. They do not meet Dwarris' definition
a right to demand that he be governed by general rules ; of police regulations. They do not have reference to
and a special statute that singles his case out as one to the comfort, the safety or the welfare of society. Pot-
be regulated by a different law from that which is ap- ter Dwar. Stat. 458.
plied in all similar cases would not be legitimate legis- In Austin v. Murray, 16 Pick. 121, it was said: “The
lation, but an arbitrary mandate, unrecognized in law will not allow the rights of property to be invaded
free government. Mr. Locke has said of those who under the guise of a police regulation for the promo-
make the laws: *They are to govern by promulgated, tion of health, when it is manifest that such is not the
established laws, not to be varied in particular cases, object and purpose of the regulation.” See also to
but to have one rule for rich and poor, for the favorite like effect the language of Colt, J., in Watertown v.
at court and the couutryman at plough;' and this Mayo, 109 Mass. 315; S. C., 12 Am. Rep. 694, and the
may justly be said to have become a maxim in the law opinion of the court, and cases referred to, in Re Ap-
by which may be tested the authority and binding plication of Jacobs, 98 N. Y. 109, et seq.; S. C., 50 Am.
force of legislativo enactments.”

Rep. 636, and People v. Marx, supra.
And again the same authority says (p. 393): "The But it is suggested in argument that one purpose of

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the sections is to furnish needful information to the all his contracts in these respects to be regulated by public. If that be so, then under section 13, article 2, weight; and when he has no necessity for the use of supra, there must first be made compensation to the scales in these respects, he cannot in our opinion be owner of the property thus to be devoted to public compelled to keep and use them. use; for it must be too apparent to need argument in We think the court erred in its ruling in giving the its support that to compel the purchasing of scales one and refusing the other instruction. The judge and the employing of a person to use them, for the ment is reversed, and the cause remanded for further benefit of the public, is to appropriate the private proceeding consistent with this opinion. property, i. e., the money which this will cost, to pub

Morse v. Stocker, 1 Allen, 150; State v. Glen, 7 Jones (Law), 321.

The main reliance of the counsel representing the WATER AND WATER-COURSE PRESCRIPTIVE State to sustain the ruling below seems however to be

RIGHTS TO THE FLOW. on the ground that mining for coal is affected with a public use, so that it may be regulated by law, like

MAINE SUPREME JUDICIAL COURT. public warehouses, as held in Munn v. Mlinois, 94 U.S.

JUNE 15, 1886. 113. It cannot be claimed that mining for coal was by common law affected with a public use, and therefore

MURCHIE V. GATES. * specially regulated by law, like the business of innkeepers, common carriers, millers, etc.; and in our

A right to the artificial flow of water through a water-course opinion it is not, like the business of public ware

can be acquired by prescription. bening, within the principle.controlling such classes ACTION for diversion of a water-course. The opin

ion states the case. to mine owners any more than they are compelled to

A. McNichol and George A. Curran, for plaintiffs. resort to the owners of wood or turf, or even to the owners of grain, domestic animals, or to those owning F. A. Pike, for defendant. any of the other ordinary necessaries or conveniences

EMERY, J. There was evidence tending to estabof life which form a part of the commerce of the

lish the following as facts: In the St. Croix river, at country. The owner of a coal mine is under no obligation to island and the American shore for some distance above

Calais, is an island near the American shore. This obtain a license from any public authority, and there- and below were formerly oue estate. As early as 1810 fore when he choses to mine his coal he exercises no

dams and mills were built across from the shore to the franchise. We are aware of no case wherein it has

island at the upper end. The title to this upper mill been held that the owner or operator of a coal mine privilege afterward came to the defendant. In 1824 stands on a different footing, as respects the control

was the severance in the township. A conveyance and sale of his property, than the owner or operator

was made of the land pearly opposite the lower end of of any other kind of property in general demand by the island, " with liberty to build a dam from the the public. We are not unmindful that our Constitu

shore across to the island." The title to this lower tion, in section 29, article 4, enjoins legislation in the interest of miners; but this is solely as respects his privilege afterward came to the plaintiffs.

The owners of the upper privilege had from time to personal safety-the enactment of police regulations time, during the last forty years, deepened the chanto promote that end. It recognizes that the business

nel leading to their mills by removing rocks, etc. They is dangerous to life and health, but it nowhere inti

had also, for at least sixty years, maintained a sheer mates that there is any thing in it which disqualifies dam running from the upper end of the island up the parties engaged in it from contracting as they may in

river, sheering out into the river. This sheer dam and regard to other matters, or that gives the public a use

the deepening of the channel conducted more or less in it. There is also in section 5, article 13, a provision of the waters of the St. Croix toward the American requiring railroad companies to permit connections to shore and down inside the island, which water would be made with their tracks, so that coal banks or coal

otherwise have flowed past outside of the island. For yards may be reached; but the same provision also

many years, at least forty, there were several mills on applies to consignees of grain, and it affects the duty the upper privilege, between the shore and the island, of the carrier alone, for no duty or obligation is en

which vented the water into the channel between the joined on the owner of the coal bank or coal yard in

island and the shore. This flow of water down inside that respect.

the island was the power for the mills upon the lower We recognize fully the right of the General Assem- privilege. At the upper end of the island, upon the bly, subject to the paramount authority of Congress, to prescribe weights and measures, and to enforce their mill, which vented water into the main river outside

upper privilege, was also a mill, called the Franklin use in proper cases, but we do not think that the Gen

the island. This water of course would not then flow eral Assembly has power to deny to persons in one

to the lower mills. kind of business the privilege to contract for labor, and to sell their products, without regard to weight, for a time, and diverted to the Franklin mill, and so

In 1882 the defendants ceased using the inshore mills while at the same time allowing to persons in all other kinds of business this privilege; there being nothing flowed through the inshore mills, down inside the

downı outside the island, the water that formerly in the business itself to distinguish it in this respect

island to the plaintiffs' mills. For this diversioií this from any other kind of business. And we deny that the burden can be imposed on any corporation or in

action was brought, and the jury have found there was

such a diversion of the water. dividual, not acting under a license, or by virtue of a franchise, of buying property and hiring labor merely only claim of right the natural flow of water, and

The defendant contended that the plaintiffs could to furnish public statistics, unless upon due compen

could not acquire by user, however long continued, a sation to be made therefor. So far as the owner or operator of a mine shall con

legal right to the surplus or extra water artificially led tract for the mining of coal or the selling of coal by artificial deepenings of the channel. The judge in ef

into the channel by defendant's sheer dam, and by the weight, we see no objection to the statute as imposing fect instructed the jury that the plaintiffs were entiupon him the duty of procuring scales for that purpose; but we do not think that he can be compelled to make

*5 East. Rep'r, 816.

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tled to all the water which naturally flowed in the purchasers built mills thereon, which have been pro-
channel between the island and the American shore, pelled by water from the upper mills for half a cen-
and which had been permitted to flow, and they had tury.
been accustomed to receive at the mills, and privilege The English cases cited by the defendant will be
through the series of years down to 1882. That series found, upon examination, to be cases of artificial sup-
of years was admittedly more than twenty.

ply rather than of artificial channel. In other EngThe defendant construed the language as meaning lish cases the distinction is clearly made, and the that the plaintiffs might be entitled to more than the same principles applied to artificial as to natural waternatural flow of water; that they might become euti

See language of Pollock, C. B., in Wood v. tled by prescription to the flow of such water as had Wand, supra, and Leeman, C. J., in Mayor v. Chadbeen artificially led into the channel. We think it wick, supra. Baron Channell, in Nuttall v. Bracewell, may be coustrued to mean that the plaintiffs were en- L. R., 2 Exch. 1, tersely expresses the situation; hence titled to only so much of the natural flow as had been when he says: “It is a natural flow or stream through permitted to flow, lessening rather than enlarging an artificial channel.” See also Ivimey v. Stocker, L. their rights. The defendant contended for a prescrip. R., 1 Ch. App. 396. tive right to divert the water from the plaintiffs, and The case of Lockwood Co. v. Lawrence, 77 Me. 297; if applied to that contention, the instruction was in 8. C., 52 Am. Rep. 763; 1 East. Rep'r, 403; 32 Alb. L.J. their favor. But we will examine the instruction as 307, cited by the defendant, recognizes the dootrine construed by the defendant.

that rights in the flow of water may be acquired by It the plaiutiffs, by a user sufficiently long and con- prescription. The rights contended for in that case tinuous, could acquire a prescriptive right to the ac- however were not sustained by the evidence. In this customed flow of the water thus artificially led into case the evidence was for the jury. this channel, the instruction is admittedly correct; LOmitting a minor point.] but the defendant contended that the water-course in- Motion and exceptions overruled. side the island was in fact artificial, and that no pre- Judgment on the verdict. scriptive rights can be acquired therein.

Peters, C. J., Danforth, Virgin, Foster and Haskell, The theory of prescriptive rights is that there was a JJ., concurred. grant made of them. It is presumed that what one has so long permitted another to enjoy, he has granted to him. It would seem that a grant of water ease

SHERIFF - APPOINTMENT OF SPECIAL DEPUTY ments could be as readily presumed as the grant of any

- WANT OF SEAL.
other easements. Such easements are valuable. Im-
portant interests ofteu depend upon them. They are NEW HAUPSHIRE SUPREME COURT, MARCH 12, 1886.
the ordinary subjects of grants. The use of them are
as permanent as in the case of many other easements.

JEWELL V. GILBERT.
They can be as easily defined. There would seem to
be no good reason for accepting them from the gen-

A person specially appointed by a sheriff to serve a writ,

though his'appointment is not under seal, is an officer de eral rule as to prescriptive rights. If prescription is

facto for that purpose. to obtain at all as a foundation of legal right, such a

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cause as this would seem to be clearly within the prin- | ASSUMPSUT. The plaintiff claimed alien for sup

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ciple.

plies furnished toward We also think the case is within the authorities. In

wood. The Grand Trunk Railway Company, as claimBelknap v. Trimble, 3 Paige, 577, Chancellor Walworth ant of the wood, objected on the ground that a lien appositely said: “A proprietor at the head of a stream had not been secured by a valid attachment. The atbo bas enlarged the natural flow of the waters, and

tachment was made by one whose appointment as a has continued such change for more than twenty special deputy for the service and return of the writ years, cannot afterward be permitted to restore it to was not under seal. its natural state, when it will have the effect to de- A.S. Twitchell, A. R. Evans, and A. L. Chamberlain, stroy the mills of other proprietors below, which have for plaintiff. been erected with reference to such change in the natpral flow of the stream."

Drew, Jordan & Carpenter, for claimant. In Delaney v. Boston, 2 Harr. 489, it was declared DOE, C. J. “The de facto doctrine was introduced that one who has suffered water to flow through his into the law, as a matter of policy and necessity, to land in a new, artificial channel for twenty years, can- protect the interests of the public and individuals, not then divert it to the injuries of riparian proprie- where interests were involved in the official acts of tors above, who have enjoyed the benefit of its flowing persons exercising the duties of an office without bein such artificial channel.

ing lawful officers. It was seen * that the In Shepardson v. Perkins, 58 N. H. 354, the case last public could not reasonably be compelled to inquire cited is quoted, and the principle applied in favor of into to the title of an officer, nor be compelled to show mill-owners below on the artificial channel. See also a title, and these became settled principles in the law. in English cases, Wood v. Wand, 3 Ex. 777; Mayor v. But to protect those who dealt with such officers when Chadwick, 11 Adol, & El. 571.

apparent incumbents of offices, under such apparent The defendant urges that he cannot be obliged to circumstances of reputation or color as would lead keep up the sheer dam, and that all the extra flow is men to suppose they were legal officers, the law valcaused by his works. He insists he is not bound to idated their acts, as to the public and third persons, maintain works to lead water to the plaintiffs' mills, on the ground that, as to them, although not officers and that what extra water he gathers in by his own de jure, they were officers in fact, whose acts public labor and appliances he can use and set free in what policy required should be considered valid.” State v. direction is most convenient for him. This action Carroll, 38 Conn. 449. 467. however is not for neglect to keep up the dam, nor for “Upon well-settled principles it would be inconrefusing to gather water into the channel. The water, sistent with the convenience and security of the pubthe diversion of which is complained of, bad in fact lic, and with a due regard to the rights of one acting come into the channel down as far as the upper mills. in an official capacity under the color of and a belief in It will be recalled that the owners of the upper mills lawful authority to do so, that the validity of his acts couveyed the land below for a mill privilege; that the as a justice should be disputed, or the legal effect of

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