if he would strike at him and was expecting | tiff was 111⁄2 years old, stealing a ride on a it, that he was ready to jump just as soon freight car. He was on the side of the car as the driver struck, but the driver "was with his feet in the truss bar and both hands too fast with the whip," and he fell. The in handle of door. The train was moving horses were going on a walk all the time slowly. A brakeman on top of the car saw up to the occurrence of the accident. the boy, came towards him, raised his hand, and said, "Get off." The boy looked to see where he was jumping and jumped off, landing on a pile of cinders as he seemed to have cut off both his legs. The court below direct- If the rule concerning trespassers is to be applied in railroad cases, then, a fortiori, should it be applied in the present action. The usual cracking of a whip at a boy "catch-intended to, and slipped under the car, which ing a ride" on a slowly moving wagon is the demonstration complained of, but it is quite clear that such conduct was not sufficient to evince an intention to injure, nor were the circumstances such as to indicate that willingness to harm which is equivalent to an intent to produce that result. The wagon was not going at a greater rate of speed than it was when the trespasser, with apparent facility, boarded it. The watchfulness of the plaintiff was caused by the avowed apprehension and expectation of receiving the lash. The readiness to jump off was prep aration for such necessity, and, as common knowledge indicates, the occurrence was one ordinarily met with among drivers. It would be going too far to say that a man of ordinary intelligence would expect under such circumstances an injurious result, or that there was any evidence of willfulness to be submitted to a jury. That a defendant might reasonably have anticipated a possible injury to a trespasser plays no part in determining willfulness. There must be some evidence tending to show the maliciousness of the offender-that is, his intention to do an injury -else the jury are without authority to infer it. Nor was there evidence to sustain a conclusion that the plaintiff by reason of the defendant's act of whipping lost his self-control. He did not claim it in the testimony. The most that he did claim was that the driver was "too fast." The whip struck the plaintiff on the shoulder. It did not even extend to his back. There was no evidence of excessive force or show of force. It is not perceived how otherwise the driver could have insisted upon the immediate cessation of the trespass, which undoubtedly he had a right to do, without abandoning his team in the public street. Perhaps the consciousness of wrongdoing played an important part with the plaintiff in causing his excitement. The fear of the wrongdoer is thus alluded to in Planz v. Boston & A. R. R., 157 Mass. 377, 32 N. E. 356, 17 L. R. A. 835. "The order to get off was addressed to him as a wrongdoer, and the fact that he was such would be likely to give force to the order, and help to cause the injury. ** It is fairly to be inferred that his consciousness of his fault and his fear of punishment * * * operated with the order and induced him to take the risk of jumping." The direction of a verdict in that case was sustained. In Mugford v. Boston & M. R. R., 173 Mass. * Nor can the infancy of the plaintiff lead to a different result. The rule that denies to a trespasser a duty on the part of others to observe care toward him is not changed by the fact that he is an infant. This principle was applied in the so-called Turntable Cases. Turess v. N. Y. S. & W. R. R., 61 N. J. Law, 314, 40 Atl. 614, and D. L. & W. R. R. v. Reich. 61 N. J. Law, 635, 40 Atl. 682, 41 L. R. A. 831, 68 Am. St. Rep. 727, and, also, in Friedman v. Snare & Triest Co., supra. It is also held in Pennsylvania and Massachusetts. Gillespie v. McGowan, 100 Pa. 144, 45 Am. Rep. 365; Balto. & O. R. R. v. Schwindler, 101 Pa. 258, 47 Am. Rep. 706; Rodgers v. Lees, 140 Pa. 475, 21 Atl. 399, 12 L. R. A. 216, 23 Am. St. Rep. 250; Morrisy v. Railroad, 126 Mass. 377, 30 Am. Rep. 686. The plaintiff having failed to adduce evidence from which a jury might legally infer a willful and intentional injury or an exhibition of force calculated to or which in fact did result in the loss of self-control of the plaintiff, the judgment of nonsuit will be af TAYLOR v. NEW YORK & L. B. R. CO. (Court of Errors and Appeals of New Jersey. Nov. 14, 1910.) (Syllabus by the Court.) 1. FALSE IMPRISONMENT (§ 15*) - RAILWAY POLICEMAN-SCOPE OF AUTHORITY. bury Park. There, by order of the superintendent, he was set at liberty. The plaintiff's contentions were that the judgment upon which the execution was issued had been already satisfied, so that the execution was invalid; that, assuming the execution was valid, the use of handcuffs amounted to unreasonable and excessive force; that the arrest was warranted only by want of sufficient goods and chattels out of which to make the judgment debt, and that Taylor The duties of a railway policeman, appointed on the application of a railroad company, and commissioned by the Governor pursuant to the "act concerning carriers" (P. L. 1904, p. 322, § 4), are confined to criminal cases. [Ed. Note. For other cases, see False Im-owned and was in visible possession of perprisonment, Cent. Dig. §§ 5-67; Dec. Dig. §sonal property more than sufficient for this 15.*] 2. FALSE IMPRISONMENT (§ 15*) - RAILWAY If railway policemen, appointed and commissioned under the act (P. L. 1904, p. 322, § 4), are employed in matters aside from their duties under the statute, the employer may be held answerable for what they do the same as in other cases of agency. [Ed. Note. For other cases, see False Imprisonment, Cent. Dig. §§ 5-67; Dec. Dig. 8 15.*] 3. FORMER DECISION DISTINGUISHED. Tucker v. Erie R. R. Co., 69 N. J. Law, 19, 54 Atl. 557, distinguished. Error to Supreme Court. Action by Joseph Taylor against the New York & Long Branch Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed. John S. Applegate & Son, for plaintiff in error. Aaron E. Johnston, for defendant in error. purpose; and that without authority the constable took Taylor to Long Branch, contrary to the direction of the writ of execution, which required him to be taken to the county jail. Without spending time upon the other points, we think the taking of Taylor to Long Branch was clearly in excess of the warrant of the writ. But the railroad company was responsible for this only on the ground that Lankinau participated in it, and that Lankinau was in this behalf an agent of the defendant, acting within the scope of his authority. It is argued for the plaintiff in error that there was no evidence that Lankinau directed or in any way instigated Wilson to take Taylor to Long Branch. This contention is clearly untenable; there being testimony from which the jury might reasonably infer that Lankinau fully co-operated with Wilson in the arrest, and assented to, if he did not suggest, the taking of Taylor to Long Branch. Lankinau's agency for the railroad company in the matter was not so clearly demonstrated, but we think there was sufficient evidence to require the submission of the question to the jury. It appeared from the evidence that Lankinau was a "state detective"-a "state officer." It did not clearly appear, but seems to have been tacitly conceded, that he was a railway policeman appointed on the applica PITNEY, Ch. This was an action of tort for false imprisonment, wherein the verdict and judgment went in favor of the plaintiff. The sole ground relied upon for reversal is the refusal by the trial judge of a motion, made at the close of the evidence, that a ver dict be directed in favor of the defendant. The proofs tended to show that in July, 1907, the railroad company obtained a judg-tion of the railroad company and commisment against Taylor before a justice of the peace of the county of Monmouth, sitting in the small cause court, in an action of tort, for $1 damages and $4.11 costs, and that on July 9, 1908, a writ of execution was issued thereon against the goods and chattels of Taylor, the writ commanding the officer, for want of sufficient goods and chattels, to take the body of Taylor and convey him to the county jail. This writ was placed in the hands of one Wilson, a constable, for execution, and by virtue thereof he took Taylor into custody at the Asbury Park station of the railroad company, being assisted in so doing by one Lankinau. Handcuffs were put upon the prisoner's wrists, but were removed shortly afterwards; and subsequently he was taken by the constable to the office of the superintendent of the railroad company at Long Branch, about seven miles from As sioned by the Governor pursuant to P. L. 1904, p. 322, § 4. Assuming, however, that he had such a commission, and by virtue of the statute possessed the powers of a policeman and of a constable in criminal cases, there was still abundant evidence that he was employed by the company in the performance of duties aside from those of a railway policeman. The evidence was to the effect that he was regularly employed by the company, with the duty of seeing that order was preserved about its railroad station, included in which was the duty of seeing that the hackmen kept their proper places. The plaintiff for ten years or more had been engaged in driving hacks during the summer seasons at Asbury Park. Repeated suits were brought against him by the railroad company in the justice courts during the summer of 1907. The records of four such policemen cannot be made a cloak to shield the company from responsibility for what may be done by such agents under the employment of the company aside from the strict and proper performance of their duties as officers under the act. There being evidence justifying the inference that in what Lankinau did about the plaintiff's arrest he was acting within the scope of his authority as agent for the defendant company, and the evidence justifying the further inference that he participated in the act of the constable in taking the plaintiff to Long Branch, in excess of the warrant of the writ of execution, it was proper to submit to the jury the question of defendant's liability to the plaintiff, and the motion for the direction of a verdict in defendant's favor was properly refused. The judgment under review should be af actions were introduced in evidence, one of of agency. Their commissions as railway which resulted in the judgment upon which the body execution was issued. Lankinau figured as a witness for the company in each of those cases, and it was Lankinau, who, in the month of July, 1908, made the necessary affidavit to show that Taylor was not a freeholder, in order that the justice might issue a body execution against him. Lankinau was not only present when Taylor was arrested, but, according to one view of the evidence, he may be deemed to have acted as a volunteer in the arrest. in the sense that he was not requested by the constable to lend assistance. And it was Lankinau who produced the handcuffs, which, as the jury might believe, were not needed except for their intimidating effect. From this and other evidence the jury might well infer that a somewhat systematic campaign was being conducted by the railroad company in the effort to secure observance by the hack-firmed. men at the Asbury Park station of the company's regulations respecting the mode in which they should ply their trade; that Lankinau was especially charged by the company with the conduct of this compaign; and that the arrest of Taylor was only one step in its prosecution. The duties of a railway policeman under the act of 1904 (P. L. 1904, p. 322, § 4) are confined to criminal cases. CRANE et al. v. McMURTRIE et al. (Court of Errors and Appeals of New Jersey. Nov. 14, 1910.) (Syllabus by the Court.) 1. DEEDS (§ 90*) - CONSTRUCTION GRANT. In his official capacity he has nothing to do with arrests under civil process. The case of Tucker v. Erie R. R. Co., 69 N. J. Law, 19, 54 Atl. 557, cited by plaintiff in error, was quite different from the present. There the plaintiffs were arrested upon a criminal charge, although without warrant, and all that was done by the railway policemen about the arrest and subsequent prosecution was done in the line of their duty under the Governor's commission. The decision was that for their misconduct in arresting and prosecuting the plaintiffs the railroad company was not responsible, on the ground that although the policemen were appointed upon the application of the company, they were responsible for the proper discharge of their official duties not to the company, but to the state. But the opinion of the Chief Justice, who spoke for the Supreme Court, distinctly recognizes that if the prosecution of the plaintiffs had been instigated by the company, or its officers or employés, or if what the railway policemen did had been done by them as agents of the company, and not solely as police officers, the company would have been legally respon sible. In our opinion, if railway policemen, appointed and commissioned under the act of 1904, are employed by the railroad company, or any other corporation or person, in matters aside from their duties under the statute, the principal may be held answerable for what they do, the same as in other cases - PRIVATE It is an established rule of construction that the words of a private grant, if equally susceptible of two meanings, shall be taken most strongly against him who uses them. [Ed. Note.-For other cases, see Deeds, Cent. Dig. § 235; Dec. Dig. § 90.*] 2. WATERS AND WATER COURSES (156*) WATER RIGHTS-CONVEYANCES-CONSTRUCTION. In a deed the words of description were "300 inches of water under a two and one-half feet head." It was shown that this was the equivalent of 948 cubic feet of water per minute if measured by the "practical inch," and of upwards of 1,500 cubic feet per minute if measured by the "theoretical inch." There was nothing in the context or in the contemporaneous circumstances to show whether the larger or the more restricted meaning was intended. Held, that as against the grantor and those claiming under subsequent grants from him the larger meaning would be taken as intended. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 156.*] 3. DEEDS (§ 177*)- CONSTRUCTION - SUBSEQUENT ACT OF GRANTORS. A grantor cannot by creating practical difficulties, after he has made a grant that is free from them, defeat a grant already made or influence its legal construction. Dig. § 177.*] 4. DEEDS (§ 90*)-CONSTRUCTION-PRACTICAL A court required by the issue to determine the legal rights of parties by construing their written grants may upon proper pleading assume the further task of laying down a practical rule for their enjoyment, but, if either must give way, it must be the latter, since the prime office of courts is to determine rights, shall be gauged so as to secure the several not to mould them to circumstances. [Ed. Note. For other cases, see Deeds, Dec. Dig. § 90.*] Appeal from Court of Chancery. Bill by Aline E. Crane and others against Delphine McMurtrie and others. Decree for complainants (68 Atl. 892), and defendants appeal. Reversed and remitted for modification. Wayne Dumont and William H. Corbin, for appellants. William H. Morrow, for appellant Abram McMurtrie. George M. Shipman, for appellant Delphine McMurtrie. Smith & Brady and John W. Harding, for respondent Aline E. Crane. GARRISON, J. The decree brought up by these appeals undertakes to settle the respec tive rights of three parties in their proprietary use of a water power. The description of these rights and the history of their acquisition by the several parties are so fully stated in the opinion of the learned advisory master that without any extended restatement of the case we may proceed at once to point out the two matters in respect to which we have come to a different conclusion to that reached in the court below. The three parties to the litigation are Crane, Bamford, and McMurtrie, each of whom has by grant a property right to a certain quantity of the water that flows through an artificial raceway on the Pequest river, in Warren county. These grants, which are in effect from a common grantor, are, in point of time, first that of Bamford, then that of Crane as to one of her grants, then that of McMurtrie, and lastly the second Crane grant. The only questions with which we find it necessary to deal are, first, as to the manner in which the ascertainment of the quantity of water to which Bamford is entitled was treated in the decree, and, secondly, the proper construction of the grants of Crane and McMurtrie. enjoyments thereof. The The substantial questions, therefore, on which the parties joined issue and went to trial were, first, their respective proprietary rights as grantees of the water flowing through the raceway; and, secondly, how such rights when determined should be practically enjoyed by their several owners. first question, which is one of the construction of written grants, admits of a conclusive judicial answer based upon the estabThe latter, which is a problem in applied physics, may or may not admit of precise solution by the judicial application of the scientific data furnished by the testimony to the practical situation. If either must give way, it must be the latter, since the prime duty of the court is to determine rights. Whether such rights when determined can be practically adjusted by the decree of the court, or whether they must be left to such adjustments or compromises as the owners of such rights alone have the power to make, depends upon the nature of such rights and the facts of the given case. Clearly the rights of the parties come first. These remarks are made because in each of the respects in which we differ from the conclusions of the learned advisory master it seems to us that in a juncture in which either the rights of the parties or the regulation of such rights must give way the decree gives precedence to the latter over the former. lished canons of that branch of the law. From the decree, which was in all substantial respects favorable to the complainant, Bamford has appealed and McMurtrie has appealed. Mrs. Crane has not appealed. Bamford's appeal challenges that part of the decree by which his right to the water flowing through the raceway is limited to 948 cubic feet per minute. The decree adjudges that this is the equivalent in cubic feet of "300 inches of water under a two and one-half feet head," which is the language of Bamford's grant. The present litigation was started by the It is not questioned that this is a correct filing of a bill by Mrs. Crane by which she result if the language quoted be construed claimed that she owned one-fourth of the as requiring that the flow of water thus deflow of the water in the raceway, with which scribed is to be measured by the "practical right she alleged that Bamford and McMur- inch," which the learned advisory master extrie had interfered by placing in the race- plains in his opinion and applied in the deway an obstruction with an aperture that cree that he advised. It appears, however, permitted less than one-fourth of the flow to from the testimony and in the conclusions of come to her. The prayer of the bill was for the advisory master that there is another the removal of this obstruction, and that the mode of measuring such a flow, viz., by the defendants be enjoined from interfering with "theoretical inch," which, if applied to the the complainant's right. Bamford and Mc- flow of water called for by Bamford's grant, Murtrie by their answers denied the com- would give him upwards of 1,500 cubic inchplainant's right to the proportion of the flow es of water per minute. Upon the assumpasserted by her, and by their cross-bills asked tion that the language of the grant was the Court of Chancery to determine the re- equally consistent with either of these modes spective rights of the parties to the flow of of measurement, the decree gave to Bamford the raceway and to decree how such flow the less favorable of the two. This is the adjudication that Bamford challenges by his wrong done by construing such term accordappeal. The reasons given by the learned advisory master for adopting the mode of measurement that he did and for his rejection of the other mode are set out in full in his opinion, and need not be repeated here, excepting as to his final conclusion, in which after saying, "I shall not attempt the difficult task of deciding between these conflicting views," he announced that he would "adopt the views of the defendants' engineers. Just what was meant by this we cannot say, but, assuming that it referred to some evidence given in the cause, we have examined the testimony of all of the witnesses called by either Bamford or McMurtrie without discovering anything that could be construed into an abandonment by Bamford of his right to have the benefit of the most favorable construction of his grant, even assuming that the witnesses in a cause can by anything they may say so affect the rights of the litigating parties. The expert testimony, it is true, afforded the practical data for the application of each mode of measurement, but did not bind the party who produced such testimony to either mode conclusively, certainly not to the mode least favorable to such party. The chief reason, however, for not rehearsing the considerations stated in the conclusions of the court below is that they signally fail to overcome the well-established rule that in the construction of private grants words equally susceptible of two meanings shall be taken most strongly against him who uses them. "It is a maxim in law that every man's grant shall be taken by construction of law most forcible against himself." Co. Litt, 183a. The reason given for this rule in Cruise, Dig. tit. 32, c. 20, § 13, is "that the principle of self-interest will make men sufficiently careful not to prejudice themselves by using words of too extensive a meaning, and all manner of deceit is hereby avoided in deeds; for men would always affect ambiguous expressions if they were afterwards at liberty to put their own construction on them." To the same effect is Shep. Touch, 87. "When a party introduces an expression having two meanings, one larger, the other more limited, he cannot afterward set up the narrower construction," is the text of a note to Elphinstone on the Interpretation of Deeds, p. 94, which the American editor has illustrated by a large number of citations. It may be freely admitted that this rule does not apply where a different construction is made necessary by the context, or where to apply it would be to work a wrong, and also that contemporaneous circumstances may lead to its rejection. In the case in hand, however, none of these conditions are present to militate against giving to this rule its full effect. There is no context to modify ing to legal rule; while the contemporaneous circumstances run with the rule rather than against it. The grant to Bamford's predecessor in title was the earliest made of this water power. It was presumably made to attract manufacturers and hence liberal. It was without qualification a grant of "300 inches of water under a two and one-half feet head," and no mode of measurement suggestive of the practical inch was provided. In this last respect it was on its face more liberal than subsequent grants, for in subsequent grants the same grantors specified that the water granted was to be "gauged by an aperture in the raceway," which shows that they knew how to impress such narrower effect upon their grants. The practical difficulties that have arisen from the difference in the grants could not have been in the mind of the grantor when the earliest one was made for they had not then arisen and would not have arisen but for the changed language of the later grants. A grantor, however, by creating practical difficulties, after he has made a grant that is free from them, defeats the grant he has already made or introduces adverse elements to affect its legal construction. In fine, whatever went out of the grantor by the Bamford grant stayed out of him and thereby diminished his title, and those claiming thereunder can rise no higher than their grantor's rights or invoke or repel legal rules for the construction of his earlier grant that he himself could not. Assuming, therefore, that it is possible to read Bamford's grant as if it contained the language that was inserted in the later grants and not in his-a pretty violent presumption in view of the actual language employed-and assuming, also, as we must, that it is also possible to reach such grant as it was written-i. e., free from such narrower mode of measurement-then by force of the rule stated such grant should be given the meaning most favorable to its grantee as against the grantor or those who claim under his subsequent grants. This is the construction that we think should be given to Bamford's grant and to it the testimony taken in the cause be applied. To this end the decree upon Bamford's appeal must be reversed. McMurtrie's appeal also turns upon a question of the construction of grants, viz., those of McMurtrie and Crane. For the proper presentation of the question involved the language of each grant must be quoted. In the first of the two Crane grants the language pertinent to the water right was this: "Together with one hundred inches of water under a two feet head to be gauged by an aperture to be fixed by the party of the first part at their own proper costs and expenses and to be taken out of the raceway of the party of the first part opposite the south end of the aforesaid lot; it being |