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a trial court are presumptively right. Ap-vicinity of the township line between Leonpellant's counsel has not attempted to show ard and Davenport townships, in Cass county, what the several sums found by the court causing damage to highway grades on such should be, of what items they are composed or to what extent they should be reduced. It is not the duty of this court to search for errors. It should not disturb findings of fact, unless it clearly appears that they are not sustained by the evidence.

[7] Numerous assignments of error relating to the admission and rejection of evidence have been examined; none of them being deemed of sufficient importance, in a case tried by the court without a jury, to warrant discussion. No ground for reversal or modication having been shown, except as to the expense of taking out the tax deed, which should be deducted from the amount required to be paid by the plaintiff, the judgment of the circuit court, as so modified, must be affirmed, with costs and disbursements in this court taxed in favor of the respondent.

township line. The plaintiff asks injunctional relief to prevent defendants from obstructing the natural waterflow by the maintenance of certain highway grades and highway ditches on either side of the same, as heretofore constructed by them, and now maintained on the section line between sections 24 and 25, in Leonard township, and which grade ditches convey water to the township line grade and grade ditches between said townships. The other parties defendants are sought to be enjoined from preventing natural flow of water across section 24 owned by them.

The water, the cause of the trouble, comes from two sources-melting snow and rainfall, directed by the watershed toward and upon the northern portion of section 25 and the southerly part of section 24, in Leonard township; and also a stream of water starting from springs on section 35, in Leonard township, thus having a living, constant source, and flowing in a well-defined channel for some two miles, emptying its waters into a bog or marsh varying in extent according to seasons. The water thus discharged between 200 and 300 feet south of the south 1. WATERS AND WATER COURSES (§ 115*)-line of section 24 forms a pond or marsh SURFACE WATERS-WHAT ARE SURFACE WA- from 15 to 30 rods in width.

DAVENPORT TP. v. LEONARD TP. et al. (Supreme Court of North Dakota. Oct. 16, 1911.)

TERS.

(Syllabus by the Court.)

The waters of a water course emptying into a swale, and there spreading over considerable areas and losing identity as a stream, and commingled with surface water from other sources,

become surface water.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 126; Dec. Dig. § 115.*]

Though the brook runs constantly, it has no well-defined channel northward and across section 24, but instead, at all seasons, except during high water, its waters are either lost, or end in the lowland adjacent to the creek's mouth. Plaintiff claims there exists a natural outlet from this bog in a northerly di

2. WATERS AND WATER COURSES (§ 115*)-rection across section 24, and charges deSURFACE WATERS-DRAINAGE.

The disposal of such surface water is governed by the law applying to drainage of surface waters, and no question of riparian rights in running streams is involved.

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 115.*] 3. WATERS AND WATER COURSES (§ 119*)-SURFACE WATERS-OBSTRUCTION OR REPULSION OF FLOW.

The diversion of surface water by highway ditches, necessarily excavated in building a public highway, although it occasioned damage, is, under the facts of this case, held to be not

actionable.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 131-134; Dec. Dig. § 119.*]

fendants with the diversion of the waters by means of certain artificially created ditches on either side of the highway between sections 24 and 25, extending eastward and joining with similar highway ditches extending north and south on the town line grade between the two townships. From these township line ditches, carrying water most of the season, the township highway between the townships is injured by the unusual and increased flow thus produced. These ditches were caused by the excavation necessary to build the road grade, and are shallow, of uniform depth, and such only as necessarily resulted in the use of the ordinary road-grading

Appeal from District Court, Cass County; machinery. They are sufficient, however, to Pollock, Judge.

Action by the Township of Davenport against the Township of Leonard and others. From a decision in favor of defendants, plaintiff appeals. Affirmed.

increase the flow of surface water from near the place where discharged from the creek, and to collect additional surface water from the lowlands crossed by such ditches. There are two culverts across the road north of

Engerud, Holt & Frame, for appellant. V. where the spring brook discharges its water. R. Lovell, for respondents.

These culverts permit the flow of water to the north side of the east and west grade GOSS, J. This action arises from the in-between sections 24 and 25, and the trial undation of certain lands on and in the near court found that at the end of the larger

culvert "an embankment had been construct- | channel ceasing where the creek discharged ed and been extended along the south side its waters, two or three hundred feet south of the southeast quarter of said section 24, of section 24. It is also a circumstance commencing at about the southeast corner of mentioned in the testimony, and one of section 24, about a rod north of the south which the court will take judicial notice, line of said southeast quarter, and running that the cultivation of the soil and changdue west to a point about a rod east of the ing of the prairie to cultivated fields, towest line of said southeast quarter section. gether with droughts prior to 1900, would And that since the purchase of the said have had a tendency to diminish the extent southeast quarter section by the defendants of the area naturally covered by such surVan Arnum and Fritzinger the said embank- face water; and, again, that the period ment has been permitted by said last-named from 1900 to the time of the trial of this defendants to remain on said tract as origi- action in 1909 was one of excessive moisture nally constructed." The court also found the from natural causes, which would, no doubt, discharge of the spring into the portion of in the opposite way affect the lands in quessection 25 heretofore mentioned, and that the tion. These are urged by defendants as spring "had ceased, and ever since has causes for changed conditions now existing ceased, to follow a definite channel, but has from those prior to 1900. spread out upon and flowed over the northern half of said section 25 as surface water, and that a portion of such surface water, since the construction of the highway road and grade aforesaid, has, during a part of such years [since 1900], found its way to and accumulated in a road ditch along the south side of the highway road and grade aforesaid, and has thence flowed north along the west side of the highway road and grade constructed and maintained during said years between section 24, Leonard township, and section 18 in Davenport township."

The plaintiffs admit: That a culvert between sections 24 and 19 of the respective townships, soon after it was made, was partially filled up to prevent the flow of the water through it, and thereafter raised for the same purpose. That the road grades and ditches in question were built in 1900.

Certain record evidence is before us, among which are exhibits of the original field notes of the survey of the land in question, containing thereon the course of the spring brook mapped to the middle of section 24; evidence of the opinion had by the surveyors on the matter before us at the time of their survey from August 10 to 17, 1870, and June 29, 1874, and August 5 to 10, 1874; one of said plats being from the state engineer's office of this state, and the other from the files of the surveyor general's office of the then territory of Dakota. We also have the plats of two surlawsuit, which plats agree substantially in veyors, testifying on opposite sides of this be noted the schedules as to elevations, showall important particulars, among which may ing that a natural depression of varying ing the surface depressions and establishwidth exists from the mouth of the culvert near the southeasterly corner of the southwest quarter of section 24, northeast across section 24, and touching the corner of section 13 near or at the southeast corner of said section, showing a gradual but continuous decline, amounting to about 27 inches in traversing the mile, as appears from the plat offered by defendants' surveyor witmess, as opposed to a decline of not quite 9 inches in the ditch along the half mile on the south line of the southeast quarter of section 24, from which located point a fall of 11 inches occurs in the ditch running one mile north to a point at or near the northeast corner of section 24. It is true the testimony given by the various witnesses is somewhat conflicting, as it naturally would be, in their descriptions of the lay of the ground and the natural course of drainage in the vicinity in question; but Witnesses disagree on the flowage of no very substantial conflict occurs, and the water prior to 1900, but there is practical surveyors' plats of measurements actually unaniminity in their testimony that in ex- taken we deem conclusive as to elevations. cessive high water the drainage was par- These establish a natural depression, contially or entirely across section 24, either tinuing from the culvert near the southnorthward or cornerwise in a northeasterly west corner of the southeast quarter of secdirection through natural depressions, not tion 24, opposite which culvert, two or three

That the embankment above mentioned along the south line of section 24, and on the north side of the highway grade, was either artificially constructed to prevent the water flowing northward as it emerged from the culvert, or that natural causes created it about 1900. In any event, such embankment obstructed the flow of water across section 24. The owner of the southwest quarter of section 19, in Davenport township (a township supervisor), at one time opened this embankment, permitting the water to flow northerly toward and into a natural depression extending upon or across the section, which act resulted in one of the owners of that portion of section 24 affected (one of the defendants) immediately closing the break through the embankment, turning the waters eastward again toward the township line, and also brought forth a warning from the owner as to dire results that would follow further meddling with his premises.

into a low or level intervening space, ex- If we were passing on the rights of riparian tending from said culvert northeasterly owners to the spring brook in question above across section 24, and constituting the natural drainageway of excessive water discharged by the spring in the place above described. There is, however, through said depression no channel, and the testimony is insufficient to establish that any well-defined channel ever existed across said section 24. The water in draining across said section has spread out, diffusing itself over considerable areas, varying in width according to natural depressions.

the place where it discharges its waters, an entirely different holding would result, as we would be dealing with a natural running stream, instead of drainage of surface water. No question of riparian rights is involved herein. The law applicable to water courses is inapplicable under the finding that the water of the brook on its diffusion heretofore described becomes surface water. Thereafter the law as to drainage of surface water governs. This also is to be considered [3] We are satisfied the facts make the with the fact that its drainage complained of decision of this case controlled by Carroll has been occasioned by ditches maintained as v. Township of Rye, 13 N. D. 458, 101 N. improvements made in the performance of W. 894, wherein the rule was laid down official duty by the township officers, defendthat "a township is not liable for the loss ants, or their predecessors in office. Farnham suffered by a landowner by the increased on Waters and Water Rights, pages 1553 to flow of surface water upon his land, result-1578, and chapter 29, same authority. See citations in exhaustive notes to following ing solely from the improvement of the highway in the ordinary manner, without cases, viz.: Wharton v. Stevens (Iowa) 15 L. R. A. 630; Gray v. McWilliams (Cal.) 21 L. negligence." While this is not an action for damages, yet the principle applies to 25 L. R. A. 527; Railway Company v. DuR. A. 593; Railway Company v. Brevoort, the right of the plaintiff township to re- four (Cal.) 19 L R. A. 92, and 64 L. R. A. strain damage occasioned by the surface 236; 26 L. R. A. 632. Also see Gould on water, as aptly as it does to collect dam- Waters, §§ 263, 264, et seq.; volume 48, Cent. ages so caused, where the flow complained Dig., under Waters and Water Courses, and of in either case is augmented and increased beyond its natural state by the ordinary grade ditches necessarily dug in the erection of grades in improvement of township high

ways.

subd. 5 thereof, on Surface Waters.

The action against the township board of Leonard township will not lie. As to the other defendants (landowners across whose lands it is contended the natural waterflow [1] Counsel seek to discriminate the case would be), so far as said highway ditches cited from the one before us, urging that the are concerned, it does not appear that either water discharged by the brook should not be of them have ever done more than to permit found to be surface water, but instead should the township officers to keep and maintain be treated as still within a water course. the grade, resulting incidentally in the digUnder normal conditions, under the facts in ging of the highway ditches beside the grade; this case, the stream disappears, loses its all of which have remained as at present for identity and characteristics as such, as much the past 10 years. Consequently, it does not so as though it had emptied into a lake or appear how any rights of the township board large body of water, instead of losing its of Davenport township (the plaintiff) have waters, as it does, by spreading them over a been interfered with to its injury by the considerable surface, enabling them to be two defendant landowners. As is well said absorbed by the ground and perculated in Carroll v. Township: "Whatever damage through quicksand, or other kind of subsoil, plaintiff suffered from surface water divertimpregnating with moisture a large area. ed by these highways is not traceable to any Under different soil conditions, the accumu- misconduct on defendant's part." It is uncerlations of water at this place might have re-tain whether the damage to the grade results sulted in a lake or lesser body of water, in- from the embankment maintained, or whethstead of a slough of stagnant water, largely er it results from the act of the member of absorbed by the soil, to the injury of the land the board of Davenport township, who, for and highways in the vicinity. Under these reasons of his own, rendered drainage of the facts, our conclusions from the evidence township line grade impossible by filling in (found also by the trial court), are the waters a culvert designed to carry off the water, ocdischarged from the brook, commingled with casioning this injury. Also it appears that surface waters from the other sources men- facts exist tending to leave in doubt the questioned in this opinion, are surface water. tion of whether the town line grade has been properly maintained for highway purposes, leaving out of consideration the drainage of waters.

[2] The rights of the parties relative thereto are to be governed by the rules of law applicable to drainage of surface water, instead of by the law as to riparian rights in water courses or streams having definite channels.

Under all the facts, we affirm the decision of the trial court.

proper specifications, and thereafter moved for judgment notwithstanding the verdict, or

J. L. OWENS CO. v. BEMIS et al. (Supreme Court of North Dakota. Oct. 26, for a new trial, which motions were denied,

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There is a well-recognized exception to the general rule that notice to produce must be given before secondary evidence will be received as to the contents of a letter or other written document in the possession of the adverse party. Where the pleadings clearly disclose that proof of such document will be necessary at the trial, notice to produce it is unnecessary.

and this appeal is from the judgment and also from the orders denying such motions. Appellant's assignments of error all relate to the correctness of the rulings aforesaid, and the pivotal question in the case is as to whether the order for such machinery constituted a completed contract of sale and purchase, or merely, as claimed by defendants, an offer on their part to purchase the same upon the terms therein stated. Appellant also claims that there was prejudicial error committed by the trial court in the admission in evidence, over its objection,

[Ed. Note.-For other cases, see Evidence, Cent. Dig. 647; Dec. Dig. § 185.*] 2. SALES (§ 23*)—REQUISITES-COUNTERMAND- of Exhibit 1, being a copy of a purported ING ORDER.

Until there has been an acceptance of a written order for machinery to be shipped to the purchaser at a future date, the latter is at liberty to countermand such order, as the same, until acceptance, does not constitute a contract, but merely an offer or proposal to purchase.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 44-48; Dec. Dig. § 23.*]

3. SALES (§ 23*)—REQUISITES-COUNTERMANDING ORDER.

Defendants' letter to plaintiff, countermanding such order, was as follows: "Cummings, N. Dak. 1/4, 1908. J. L. Owens Co., Mpls., Minn. -Gentlemen: Please cancel our order of Aug. 10-07. Resp. yours, Bemis & Wilsie." Held, a sufficient cancellation of such order, and withdrawal of the offer or proposal to purchase

therein contained.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 44-48; Dec. Dig. § 23.*]

letter claimed to have been sent by defendants to plaintiff, on January 4, 1908, countermanding the order for such machinery.

Before noticing appellant's contentions, a
brief statement of the facts will be made.
In the fall of 1907, defendants, dealers in
hardware, etc., at Cummings, gave to one
Kuhnley, plaintiff's traveling saleman, the
following order:
Order No.......

Date, Aug. 10-07.
J. L. Owens Co., Mpls., Minn.
Ship to Bemis & Wilsie.
At Cummings, N. D.

days.

How ship: Freight. When: Feb. 1-1908. Terms: 60 days from invoice 3 per cent. 10 3 No. 1 Men. Sup.. 3 No. 2 No. 2 Bagger..

66

46

......

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.$14 50 each.
18 50..
4.00.

Complete with

Appeal from District Court, Traill Coun- 1 No. 1 Macaroni.

ty; Charles A. Pollock, Judge.

Action by J. L. Owens Company against Vera C. Bemis and another, doing business as Bemis & Wilsie. From a judgment for defendants, and from orders denying motions for judgment non obstante veredicto and for a new trial, plaintiff appeals. Affirmed.

1 No. 2

66

Wheat, oats, barley, flax, timothy, clover attachments.

Screen, sieves, 8x8-9x9-2x11.

Total

By S. M. Kuhnley.

.$ 43 50

55 50

4. 00

2.00

3 00

$108 00

Bemis & Wilsie, per V. C. B.

Such order was solicited from defendants

Turner & Murphy, for appellant. P. G. by the said Kuhnley, and the same was Swenson, for respondents.

FISK, J. Action to recover the purchase price of certain grain-cleaning machinery claimed by plaintiff to have been sold by it to defendants in the fall of 1907. Such sale is expressly denied in the answer, and defendants' contention is that they merely gave to plaintiff's agent an order for such machinery amounting to a proposal to purchase, and that before the same was accepted by plaintiff they countermanded such order.

signed by him and by defendants at the time the order was given. Thereafter, and until January 4, 1908, no communications took place between the parties regarding such order, but on the latter date defendants claim that they mailed to plaintiff a letter as follows: "Cummings, N. Dak. 1/4, 1908. J. L. Owens Co., Mpls., Minn.-Gentlemen: Please cancel our order of Aug. 10-07. Resp. yours, Bemis & Wilsie, R. M. W.”

It is conceded that on January 8th plaintiff wrote defendants as follows: "Minneapolis, Minn., Jan. 8, 1908. Messrs. Bemis & At the conclusion of all the testimony, Wilsie, Cummings, N. D.-Gentlemen: We both parties moved for a directed verdict, have yours of the 4th, desiring us to cancel whereupon the trial court granted defend- your order of Aug. 10th, 1907, and will say, ants' motion, and judgment was entered gentlemen, in answer that we have investipursuant to the verdict directed by the gated this order and find that the order is court. In due time plaintiff caused a state- a signed order, without any provision or ment of the case to be settled, embracing condition under which you could cancel

same, and we fail to see in what light we | tice to produce the document is not necessawould be justified in doing so. Of course, ry in order to admit secondary evidence of we wish it understood that we desire to do the contents of such document, in case the all that is proper and right and meet our original is not produced. The adverse party customers in their demands where we can is bound to take notice from the pleadings possibly do so, but in this case we think it that the production of the document at the would be detrimental to yourselves as well as trial is required, and in case it is not prous, for we surely can prove to you that we duced secondary evidence must be resorted have the goods that will do what we claim to. The answer in this case necessarily infor them and will get the business in spite formed the plaintiff that the defense relied of any competition that you might have. We upon was a breach of the warranty, and know that we have a machine that can be therefore the plaintiff was bound to know sold at the right price, and that no machine, that in proving such defense the defendant no matter what it is, can compete with it would necessarily be required to prove the when it comes to doing the work in all contents of the notice sent in this registered kinds of grain and seed. And under the cir- letter. The reason for the rule requiring a cumstances we cannot consent to cancel the notice to produce the original, therefore, did order, but will consent to give you such not apply. See 1 Jones, Ev. par. 224; Kellar help, with one of our travelers, as you de- v. Savage, 20 Me. 199." See 2 Wig. on Ev. sire in starting the machines and the trade § 1205. in your territory and proving to you what [2] Appellant's next contention is that the we claim above, which we believe you your-order for this machinery constituted a conselves will agree is entirely fair and that tract of sale between the parties, but we our stand in consequence of same is not more than what you could ask or would do were you in our position. We beg to remain, Yours truly, J. L. Owens Company."

Notwithstanding defendants' attempt to countermand such order, plaintiff shipped such machinery to defendants from Minneapolis, on January 24, 1908, but, defendants refusing to receive the same, it was later sold by the common carrier to satisfy its lien for freight and storage charges.

In the light of the above facts, we are required to determine the correctness of the trial court's rulings complained of.

think such contention unsound. The fact that plaintiff's soliciting agent, as well as defendants, signed their names at the bottom of the order in no manner tends to lend support to appellant's theory. It is, we think, entirely clear that such instrument constituted a mere offer or proposal on defendants* part to purchase such machinery, and that, until accepted by plaintiff, the same would not become a binding contract. The plaintiff was in no manner obligated to accept such order, and until it did so in fact, and notified defendants thereof, the latter were at liberty to countermand the same. It is not contended that plaintiff, prior to January 8, 1908, notified defendants of its acceptance of such order, and it is conceded that such machinery was not delivered to the common carrier for shipment until long after defendants' letter had been received by plaintiff, countermanding the order. That defendants had the right to cancel or countermand such order at any time prior to its acceptance by plaintiff is abundantly supported by authority. See 1 Mechem on Sales, 252. McCormick Harv. Mach. Co. v. Richardson, 89 Iowa, 525, 56 N. W. 682; Reeves & Co. v. Bruening, 13 N. D. 157, 100N. W. 241; Colean Mfg. Co. v. Blanchett, 16 N. D. 341, 113 N. W. 614; Hallwood Cash Reg. Co. v. Finnegan (Sup.) 84 N. Y. Supp. 154; Bowlin Liquor Co. v. Beaudoin, 15 N. D. 557, 108 N. W. 545; McKindly v. Dunham, 55 Wis. 515, 13 N. W. 485, 42 Am. Rep. 740; Merchants' Exch. Co. v. Sanders, 74 Ark. 16, 84 S. W. 786; Bauman v. McManus, 75 Kan. 106, 89 Pac. 15, 10 L. R. A. (N. S.) 1138; John Mathews Apparatus Co. v. Renz & Henry (Ky.) 61 S. W. 9.

[1] Appellant's first contention is that it was error to admit in evidence the copy of the letter claimed to have been written by defendants to plaintiff on January 4th, countermanding the order; the point being that no proper foundation was laid for the introduction of such secondary evidence. A notice to produce the original of such letter was not served on plaintiff's counsel until the afternoon of the day preceding the trial, and appellant's counsel contend that this was insufficient notice. We are agreed that there was no error in the ruling of the trial court. A notice to produce such letter was unnecessary. Defendants had a right to assume that plaintiff would have such letter at the trial. The answer furnished plaintiff with sufficient notice that the same would or might be required at the trial. Nichols & Shepard v. Charlebois, 10 N. D. 446, 88 N. W. 80. In disposing of a similar question, this court there said: "The general rule is that notice to produce must be given before secondary evidence can be received as to the contents of a written document in the possession of the adverse party, but In McCormick Harvester Company v. Richthere is a well-settled exception to this rule. ardson, supra, action was brought upon a Where the issues framed by the pleadings written order for twine given to plaintiff's necessarily disclose to the adverse party agent. The court says: "It does not purthat proof of the document will be neces- port to be a contract between the parties.

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