sance, necessarily determines the present case, and we must decline to enter into other questions which might be important if his position in that respect were different. Affirmed. RANDALL v. CHRISTIANSEN, Road Supervisor. (Supreme Court of Iowa. December 18, 1888.) HIGHWAYS-CONSTRUCTION-INJURY TO ADJOINING PROPERTY INJUNCTION. Acts 21st Gen. Assem. Iowa, c. 87, amending section 989 of the Code, and forbidding the road supervisor to destroy or injure the ingress or egress to any property, does not forbid him to make street improvements which shall cause a ditch about six inches in depth, in front of the dwelling and office of a practicing physician, who has for some time at his own expense kept the street level; nor will equity interfere to prevent such slight inconvenience. Appeal from district court, Des Moines county; CHARLES H. PHELPS, Judge. William H. Randall appeals from an order refusing to grant a temporary injunction restraining Andrew Christiansen, road supervisor, from making changes in the street in front of plaintiff's property. T. B. Snyder, for appellant. C. L. Poor, for appellee. ROBINSON, J. The plaintiff applied to the district court for a temporary injunction to restrain defendant, as road supervisor, from making certain proposed changes in the street in front of block 7, in the unincorporated village of Augusta. The application was denied. From the pleadings and affidavits used on the hearing in the court below, it appears that plaintiff is a practicing physician, and the owner of the block aforesaid; that his office and place of residence are on the block, and that in the practice of his profession he has frequent occasion to pass from the block to the street, and from the street to the block, at all hours of the day and night; that he has kept the street in front of his property leveled and graveled at his own expense for many years; that defendant, as road supervisor, has commenced work upon the street, and, unless restrained, will make it higher in the center than at its sides, and will construct in front of said property of plaintiff a ditch to a depth of from four to six inches. Plaintiff insists that, if defendant is permitted to make the proposed changes in the street, the plaintiff's ingress and egress to said block will be greatly injured, and that the surface water, which now has a natural outlet across his premises, will be turned into the ditch, and will wash it to a great depth, to the irreparable injury of plaintiff. 1. The defendant concedes that the proposed changes in the street "would make access to plaintiff's property a trifle less convenient," but insists that they are necessary to the proper working in the street. He denies that the surface water would necessarily be diverted from its natural outlet across the premises of plaintiff. The record sustains the claims of defendant, and the question we are required to determine is whether the fact that the proposed changes in the street would render the premises of appellant somewhat less accessible is sufficient to require defendant to refrain from making them. Appellant insists that it is, and relies upon section 989 of the Code, as amended by chapter 87 of the Acts of the Twenty-First General Assembly, in support of his position. That section, as amended, provides that it shall not be lawful for the road supervisor "to destroy or injure the ingress or egress to any property, or to turn the natural drainage of the surface water, to the injury of the adjoining owners." It is said that any change by the supervisor, however slight, to the means of entering or leaving premises, is prohibited by the provision quoted. But it is our duty to give it such a construction as will carry into effect the intent of the general assembly. If the construction contended for by appellant is the true one, then improvement of the highway would be practically impossible in many cases when greatly needed, and the general public would suffer accordingly. The law was designed to protect the owner in the use and enjoyment of his property, and to prevent interference on the part of road supervisors, but it was not intended to prevent necessary improvements in the highways, where they can be made without material injury to adjacent property, even though some inconvenience might result to the owners of such property. It is evident in this case that no substantial right of the plaintiff is threatened. The inconvenience which can be caused by a ditch six inches in depth, furnished with proper approaches or coverings, is too insignificant to justify a court of equity in interfering. We cannot presume that the defendant will not use due care in providing a proper crossing, and, if such a crossing is made, the purpose of the law will be accomplished, and the plaintiff will have no cause for complaint. The fact that plaintiff has for many years kept the street in front of his property in such condition as he desired it to be in is not material. That gave him no vested right, as against the road supervisor. The preponderance of the evidence shows that plaintiff has no reasonable ground for apprehending danger from the effects of the overflow or surface water in the ditch. We therefore conclude that the order of the court below in refusing a temporary injunction was correct, and it is therefore affirmed. O'BRIEN V. TROXEL et al. (Supreme Court of Iowa. December 18, 1888.) LANDLORD AND TENANT-HOLDING OVER-TENANCY AT WILL. Code Iowa, § 2014, providing that any person in possession of land "with the assent of the owner is presumed to be a tenant at will until the contrary is shown," changes the common-law rule that, where a tenant for years holds over, and continues to pay rent, a tenancy from year to year is established; and, in the absence of special contract, a mere tenancy at will is thus created. Appeal from district court, Des Moines county; CHARLES H. PHELPS, Judge. Action by Jane O'Brien against John Troxel and Joseph Troxel for rent. Judgment for defendants, and plaintiff appeals. Newman & Blake, for appellant. C. L. Poor, for appellees. SEEVERS, C. J In 1884 the plaintiff and defendant executed a written lease whereby the former leased to the latter certain real estate for the period of two years from the 1st day of January, 1885, for a certain specified amount, to be paid monthly, for the use and occupation of the premises. The defendant occupied the premises for the term, and paid the rent, and also continued to occupy the same thereafter, and pay the rent as stipulated in the lease, without objection, until the 21st day of February, 1887, when the defendant served a notice on the plaintiff to the effect that the tenancy would terminate 30 days thereafter; and on the 1st day of April, 1887, the defendant ceased to occupy the premises, and did all he could to surrender the same to the plaintiff, who refused to accept such surrender. The defendant paid rent as specified in the lease up to April 1, 1887, and this action is brought to recover rent accruing after that time. 1. The contention of the plaintiff is that when a tenant for years holds over after the termination of the tenancy with the assent of his landlord, and pays rent according to the terms of the lease, that thereby a tenancy from year to year is established. Counsel for the defendant concede that in the absence of a statute the preponderance of authority is to this effect, but such, as he claims, is not the universal rule in this country. His contention is that there is a statute which changes or modifies the common-law rule. Such statute is as follows: "Any person in the possession of real property with the assent of the owner is presumed to be a tenant at will until the contrary is shown.' Code, § 2014. 2014. The defendant, therefore, was a tenant at will, unless the con trary has been shown. The parties did not so agree. There is no contract whereby a tenancy from year to year was created after the time fixed in the lease expired. At most it may be said there is a presumption which obtains at common law that by reason of the acts and conduct of the parties such a tenancy existed. But it seems to us this must be overcome by the statutory presumption. Both cannot exist at the same time, for the reason they are antagonistic and inconsistent. To overcome the statutory presumption, it seems to us that something more than another presumption must be shown; such as an agreement or contract. This, it seems to us, is the better, more certain, and definite rule, and therefore the judgment of the district court must be affirmed. MONTROSE PICKLE Co. v. DODSON & HILLS MANUF'G Co. et al. GARNISHMENT-PROPERTY SUBJECT TO-PROPERTY OUTSIDE OF JURISDICTION. Personal property under the control of the garnishee, but situated outside of the state where suit is brought, and particularly when in transit by a common carrier, cannot be reached by garnishment. Appeal from superior court of Keokuk; H. BANK, Judge. This is an action upon an account for merchandise sold and delivered by the plaintiff to the Dodson & Hills Manufacturing Company, defendant. An attachment was issued upon the ground that the defendant was a non-resident of the state; and the Diamond Jo Line of steamers, a corporation, was garnished in the action, upon the claim or supposition that it had property in its possession, belonging to the defendant, which was liable to attachment. The garnishee answered, denying that it had any property in its custody subject to the writ. Issue was taken upon the answer of the garnishee, and a trial was had by the court, and a judgment was rendered discharging the garnishee. Plaintiff appeals. Anderson & Davis, for appellant. Craig, McCrary & Craig, for appellee. ROTHROCK, J., (after stating the facts as above.) At the time the action was commenced the plaintiff was a resident of this state. The defendant was a non-resident of the state, and a resident of the state of Missouri. Service of the original notice, and of the notice of garnishment, was made personally on the defendant in St. Louis, in that state. The defendant made no appearance in the action, and a default was entered against it, and what appears to have been a personal judgment was rendered upon the default. It is not important to determine the effect of the judgment rendered upon service of the original notice out of the state. It is not a material question in the case. The Diamond Jo Line of steamers is an Iowa corporation, with its principal place of business at the city of Dubuque. It is a common carrier of freight and passengers upon steamers to and from all points on the Mississippi river between St. Paul, Minn., and St. Louis, Mo. On the 30th day of September, 1887, said steamer company received on board of one of its boats at Alexandria, Mo., some 500 or 600 barrels of pickles, for transportation to St. Louis. The property was shipped by the Dodson & Hills Manufacturing Company, at Alexandria, to the Dodson & Hills Manufacturing Company at St. Louis. The pickles were loaded on the steamer on the forenoon of that day. On the same day, and while the steamer, with the property in dispute on board, was on its way down the river to its destination, the garnishment notice was served on the steamer company at Dubuque, and one on one of its agents at Keokuk. The question to be determined is whether the property was liable to attachment by garnishment. The superior court held that the garnishee was not liable, because the property was not within the jurisdiction of that court; that v.40N.w.no.8-45 the defendant's title thereto was not doubtful; that it was capable of manual delivery, and, if within the jurisdiction of the court, it should have been levied upon and taken into custody by the officer executing the writ of attachment; and that it was not the subject of garnishment. This is the sole question presented to this court for determination. The ground of the attachment was that the defendant was a non-resident of this state. An attachment issued upon this ground avails nothing, unless the defendant has property or debts owing to him within this state. Without such property or debts, there could be no service of the attachment, either by actual levy, or by the process of garnishment. It is not claimed by appellant that any jurisdiction of the property could be obtained by seizing it outside the state. The contention is that, as the garnishee is a resident of the state, the situs or location of the property in question must be held to be in this state. This rule has been held to apply to debts owing by the garnishee to the defendant. Mooney v. Railway Co., 60 Iowa, 346, 14 N. W. Rep. 343. That was a case of garnishment of the wages of a railroad employe. The garnishee was held to be a resident of this state, and there was no contract that the wages due were to be paid in the state of Nebraska, where the employe resided and the garnishee had its principal place of business. It appears to us that the right to garnishee the steamer company, and hold it for the value of the property in question in this case, presents a very different question. The law of attachment in this state does not contemplate that property not actually within the state, but located in another state, shall be the subject of garnishment. We need not cite the various sections of the statute upon the subject of attachment and garnishment. Its whole scope and tenor leads to the conclusion that the claim made by counsel for appellant cannot be sustained. The argument of the appellant is grounded upon the thought that when the garnishment notice is served the relation of debtor and creditor at once arises between the garnishee and the defendant. It is true the statute provides that a judgment may be rendered against the garnishee if he does not deliver the property to the sheriff. This is a right given to the garnishee. He may at any time, after answer, exonerate himself by placing the property at the disposal of the sheriff. Code, § 2986. If property in a distant state may be reached by process of garnishment, in order to avail himself of this right the garnishee must transport the property to the sheriff holding the writ, and deliver it to him. The garnishee cannot be deprived of this right, and as he is an innocent party, he cannot be compelled to bring the property within the jurisdiction of the court. The facts in this case are as good an illustration of the fallacy of this claim as can be given. The steamer company had taken this property upon one of its boats, and was under way, bound under its contract of affreightment to deliver the same at St. Louis. To avail itself of its right under the above statute, it would be required to ship the goods back to Keokuk, make its answer, and deliver the property to the sheriff. The law imposes no such an obligation upon a garnishee; and yet, under the claim made by appellant, the garnishee must either do this or become the debtor of the defendant for the value of the property. The law puts no such a hardship upon a garnishee. It is very different where a debt is garnished. It is a debt first and last. In such case the process of the law does not practically compel the garnishee to become a debtor against his consent. This identical question was determined by the supreme court of Wisconsin in the case of Bates v. Railway Co., 19 N. W. Rep. 72. In an elaborate opinion, in which many of the authorities cited by counsel in this case are reviewed, it was held that personal property under the control of a garnishee, but situated out of the state where suit is brought, cannot be reached by the process of garnishment. In that case, as in this, the property was in actual transit, and out of the state, when the garnishment notice was served. We do not think it necessary to do more than refer to that case, and the authorities therein cited. It appears to us in its reasoning ⚫ to be eminently sound, and that no other conclusion could have been fairly reached; and the rule adopted has peculiar force when applied to an attempt to garnishee a common carrier while transporting goods outside the state where suit is commenced. As was said by Chief Justice BREESE in Railroad Co. v. Cobb, 48 Ill. 402: "When the property has left the county, and is in transit to a distant point, though on the same line of railway, it would be unreasonable to subject the company to the costs, vexation, and trouble of such process, merely because it had received that to be carried which the law compelled it to receive and carry." It will be understood that we do not determine the question as to the right to garnishee a carrier of property, where the same is within this state. Affirmed. TIBBETTS v. BURSTER. (Supreme Court of Iowa. December 19, 1888.) 1. INTOXICATING LIQUORS-NUISANCE-ACTION TO ABATE-CONTINUANCE-INJUNCTION. Acts 21st Gen. Assem. Iowa, c. 66, § 2, provides that when it is made to appear to the satisfaction of the court, by affidavits or otherwise, as the court may order, that a liquor nuisance actually exists or is being maintained, a temporary injunction shall issue as of course, without bond, upon defendant's application for a continuance. Held, that where the complaint alleged the existence and maintenance of such nuisance, and was supported by affidavit, and the record failed to show that the court took or required any further proof, it was error to grant defendant's application for continuance without granting the injunction. 2. SAME-VOLUNTARY ABATEMENT AFTER ACTION COMMENCED. In an action to abate a liquor nuisance, an answer which does not deny that the nuisance existed and was being maintained at the time the action was brought, but merely alleges that at a subsequent date defendant obtained and now holds a permit, is demurrable. Following Halfman v. Spreen, 39 N. W. Rep. 512. Appeal from district court, Lee county; J. M. CASEY, Judge. Action by P. E. Tibbetts against B. A. Burster, to restrain and abate an alleged liquor nuisance. A demurrer to the answer was overruled, and judgment rendered for defendant. Plaintiff appeals. Newman & Blake, for appellant. ROBINSON, J. On the 29th day of December, 1887, the plaintiff filed in the court below a petition in which he alleged that the defendant and one Stoevener were the owners of a certain lot and building described; that they had established and were keeping and maintaining a place in said building for the manufacture and sale of intoxicating liquors as a beverage, in violation of law; and that they were from day to day manufacturing and selling intoxicating liquors therein, contrary to law. The petition asked that the nuisance caused as aforesaid be abated; that a temporary writ of injunction issue, and that the same be made permanent on final hearing. On the 9th day of January, 1888, the cause came on for a hearing on notice on an application for a temporary injunction. The defendant appeared, and asked that the hearing be postponed to a future day. Her request was granted, and the 14th day of the same month was fixed for further hearing. The plaintiff thereupon demanded a temporary injunction, but was refused. It is alleged that Stoevener filed a disclaimer of interest, and the case, as to him, was dismissed. On the day fixed for the further hearing, defendant filed an answer as follows: "Denies that she is maintaining or keeping a place for the manufacture or sale of intoxicating liquor as a beverage; denies that she is now keeping and maintaining a nuisance to the great injury of plaintiff or any other citizen; admits that she owns a brewery on the lot described in petition, but says the same is not now in operation; avers that she has a permit from the board of supervisors, said permit being dated January 10, 1888, to manufacture and sell beer for culinary and mechanical purposes; admits that she purposes to soon operate said brewery under and in compliance with said permit." On the |