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"The credit which was indorsed upon the note,” it some one; and this whether it was payable to bearer was said in case 5, “is undoubtedly equivalent to an or only to a particular person. The presumption that admission by him that so much as was credited has the payee would not part with his security without been paid, and there is no principle of evidence which having received satisfaction is a reasonable one, and will allow a person after he has admitted a fact, even although these orders are sometime left with the perif the admission is by parol, and not in writing, to do sons to whom they are directed by careless persons, away the force of the admission by an after denial or without payment having been made, yet that somewithdrawal of it. Though it be afterward deuied, if it times occurs with receipts which accompany tradeswere by parol only, or if it be in writing, though it be men's bills, and no one would pretend that a receipt afterward erased or obliterated, the admission is uev- attached to a bill would therefore not be competent. ertheless evidence against the persou making it, and There is no necessity that the order should be inis entitled to all the weight of evidence of that sort un- dorsed by the payee, or that it be made payable to til explained away or disproved by him."

bearer; it is not as evidence of the transfer of the debt, In Louisiana a presumption of payment does not but as extinguishment of it, that possessiou of the paarise from the failure of the claimant to include the per becomes material.” debt in the schedule filed by him on a cession of his In an English case A. brought an action against B. goods when he was ignorant of his rights at the time for money paid out by him in accepting and paying the schedule was made. (6)

bills of exchange for the accommodation of B. The

bills were produced by C. It was held by the chief (B.)

justice that the presumption was that he paid them, 1. A draft payable to his own order drawn by T.on C.

provided it was shown that they were once in circulais found in the possession of C. The presumption is

tion after being accepted.(13) “Show," said Lord Elthat it was paid by C.(7)

lenborough, “that the bills were once in circulation 2. An order for a sum of money drawn on A. by B

after being accepted, and I will presume that they got is produced by A. The presumption is that it was paid

back to the acceptor's hands by his having paid them. by A.(8)

But when he merely produces them, how do I know 3. Drafts drawn by B. on A. and accepted by A. in that they were ever in the hands of the payee or any faror of C. are produced by A. The presumption is

indorsee with his name upon them as acceptor? It is tbat A. has paid them.(9)

very possible that when they were left for acceptance This rule was founded on a reasonable principle,

he refused to deliver them back, and having detained which is supported by numerous cases that where bills

them ever since, now produces them as evidence of a of exchange, checks, orders for the payment of money

loan of money.” This ruling has been criticised by or goods, promissory notes or other obligations are

our courts. • Undoubtedly,” said Sharswood, J., in a paid, they as a general rule go into the hands of the Pennsylvania case:(14) “ They were no evidence of a person paying them. It is to be presumed, as already loan, but having proved that they were originally lent, said, that a man paying a written obligation will take of which the report does not state that there was any it into his possession.(10)

evidence, why should not the possession of them by ** Wben," said Lord Ellenborough to the jury in an

the acceptor after maturity raise the presumption that old case, “there is a competion of evidence upon the he had paid them? With the highest respect to so question whether a security has or has not been satis- great au authority upon nisi prius law, I may be alfied by payment, the possession of the cancelled secu

lowed to express a doubt as to the sufficiency of the rity ought to turn the scale in his favor, since in the reason. Contrary to established principle, it presumes ordinary course of dealing the security is given up to

a fraud to have been perpetrated when the natural prethe party who pays it.”(11) It has been held that

sumption is that which consists with honesty. Bewhere the defense of payment of a note or other se

sides which it assumes that the holder acquiesced in a curity is made, and the evidence on both sides is palpable wrong. If the drawee retains the bill an unevenly balanced, the possession by the plaintiff of the

warrantable time, the holder could sue him in trover uncancelled paper will turu the scale in his fa- It is a reason which applies as well to a bill which had vor.(12)

been negotiated before acceptance; for the indorsee In case 2 it was said: “No argument can be drawn may leave it in the hands of the drawee for acoeptance. either from reason or convenience why possession of

When the bill is presented it is reasonable that the an order by the person on whom it was drawn should

drawee should be allowed some time to deliberate not prima facie be evidence of his having paid it to whether he will accept or not. It seems that he may

demand twenty-four hours for this purpose, and that (6) Tremoulet v. Cenas, 6 Mart. (N. S.) 541; 17 Am. Dec. 195 the holder will be justified in leaving the bill with him (1828)

for this period. So that even an indorsed bill pro(7) Connelly v. McKean, 64 Penn. St. 113 (1870); Birkey v. duced by the acceptor after maturity would not be McMakin, id. 343 (1870).

evidence of payment if this is a sound reason. But (8) Zeigler v. Gray, 12 S. & R. 42 (1824).

surely indorsed bills, checks or orders for the payment (9) Hays v. Samuels, 55 Tex. 560 (1881). The presumption is of money are prima facie evidence according to the that a map paying a note will take it into his possession. Hay- general current of the authorities." wood v. Lewis, 65 Ga. 224 (1880), and it is presumed that the

(C.) payment was made to the person entitled to receive the

1. A. is sued on a note made by A. to the plaintiff's money. Lipscomb v. De Lemon, 68 Ala, 592 (1881); Potts v.

intestate. A. produces the note with his name canColeman, 67 id. 221 (1880).

celled. The presumption is that the note is paid.(15) (10) Mills v. Hyde, 19 Vt. 59 (1846); Garloch v. Geortner, 7

2. A note made payable to A. was sued on by his Wend. 198 (1831); Weidner v. Schweigart, 9 S. & R. 385 (1823);

representatives after his death. When produced in Rubey v. Culbertson, 35 Iowa, 264 (1872); Somervail v. Gillies,

evidence the note had two lines drawn through its 31 Wis. 152 (1872); Penn v. Edwards, 50 Ala. 63 (1873); Lane v.

face. The presumption was that it had been paid.(16) Farmer, 13 Ark. 64 (1852); Edwards v. Campbell, 23 Barb. 423 (1856); Bedell v. Carll, 33 N. Y. 581 (1865); Union Canal Co. v.

(13) Pful v. Vanbatenberg, 2 Camp. 439 (1810); and see SchoLloyd, 4 W. & S. 393 (1842); Carroll v. Bowie, 2 H. & McC. 457

ley v. Walsby, Peake, 25 (1820). (1848).

(14) Conelly v. McKean, 64 Penn. St. 118 (1870). (11) Brembridge v. Osborne, 1 Stark. 374 (1816).

(15) Gray v. Gray, 2 Lans. 173 (1869). (12) Doty v. Janes, 28 Wis. 319 (1871).

(16) Pitcher v. Patrick, 1 Stew. & P. 478 (1832).

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In case 1 it is said : “Pothier, in his work on Obligations, says that "it ought to be decided generally from the possession of the debtor that the creditor sball be presumed to have given up the security, either as acquitted or released, until the creditor shows the contrary; as for instance, that it was taken surrepti. tiously.” He says further: “There is sufficient ground to presume a donation and release of the debt when its debtor gives up the security, and the circumstance of its being in the possession of the debtor is a sufficient reason for presuming that the creditor has given it up; as that is the most natural way of the possession passing from one to the other. If a promissory note or bond should chance to be found in the hands of the debtor, or if it be crossed, razed or torn in pieces, either of these circumstances will create a presumption that it has been acquitted, which preBumption will remain until clear proof be brought that the debt is still owing; as that the appearance came by violence or accident."

In this case both circumstances concur. The note is found in the hands of the maker, and it is cancelled by the removal of the maker's name. These circumstances could not lawfully exist without the act or consent of the holder of the note, and that they occurred unlawfully will certainly not be presumed.

In case 2 it was said: “If at any time before a final trial the note or bond upon which the action has been brought undergo any alteration or receive any impression indicating its destruction or satisfaction, it would appear to be but a necessary and reasonable requisition on the plaintiff that he should afford the explanation. If the act done was the result of mistake or accident, or if any effect was designed by it different from its ordinary import he alone must be presumed to know the circumstances and to possess the means of explanation."

(D.) 1. A receipt of the payment of a quarters' rent is produced. The presumption is that all former rent is paid. 17)

2. A tax assessed against E. for the year 1834 is not included in the bill for 1835. The presumption is that it is paid.(18)

3. The question is whether A. has paid a State tax assessed upon his lands for the year 1842. The taxes assessed on the same land are proved to have been paid by A. for subsequent years. The presumption is that the tax for 1842 is paid.(19)

As said in another case like case 1, this presumption arises from the improbability that the former rent remained unpaid when rent is specifically received for a subsequent period. This presumption obtains as well where several persons are entitled to receive money, as in an individual case, for they are all to be pre sumed conusant of their rights. This presumption may be repelled, but standing ancontradicted it is decisive.(20)

(E.) 1. It is proved that on January 1, 1880, B. borrowed a certain sum of inonoy from A. It is also proved that on a subsequent day an unascertained sum of money passed from B. to A. The presumption is that A. was paid his debt.(21)

(17) Brewer v. Knapp, 1 Pick. 337 (1823); Crompton v. Pratt, 105 Mass. 255 (1870).

(18) Attleborough v. Middleborough, 10 Pick. 378 (1830); and see Robbins v. Townsend, 20 id. 345 (1838).

(19) Hodgdon v. Wright, 36 Me. 337 (1853).

(20) Decker v. Livingston, 15 Johns. 479 (1818); and see Walton v. Eldridge, 1 Allen, 203 (1861).

(21) Swain v. Ettling, 32 Penn. St. 486 (1459). When absence of other dealing is shown, proof of money paid by maker of payee would raise presumption that it was paid on the note. Somervail v. Gillies, 31 Wis. 152 (1872).

2. A. Bued B. for money alleged by him to have been loaned to B.. A. testified: “B. requested me to send him $18; I sent it and he has not paid me the same or any part of it." There was no other eri. dence. The presumption was that the money was due to B.(22)

“There is not principle better settled," is was said in case 1, "than that where one pays money to another, in the absence of explanation as to the cause of payment, the presumption is that it was paid because it was due, and not by way of a loan. The plaintiff proved nothing more than he would have proved by the production of a draft drawn by the defendant on him, and proving that be, the plaintiff, bad paid the draft. On such evidence he could not recover against the drawer of the draft. Prima facie, the acceptor and payer of the draft is the party primarily liable. It is presumptively drawn against funds in the hands of the drawee. * * The case is destitute of any circum. stance which can warrant the inference that the money was advanced as a loan, unless the mere fact of the payment of money by one party at the request of another is to be considered as furnishing legal eridence, that the money was advanced as a loan. This cannot be held without overturning well sustained rules."

(F.) 1. A brickmaker sued an architect for work and labor performed two years before bringing the action. It was the custom to pay the workmen every Saturday night, and the plaintiff with the others had been seen waiting to receive his wages. The presumption was that the workman had been paid.23)

2. A remittance by mail is a presumption of pay. ment where the debtor has been requested by the oreditor to remit in this way or it is the course of business.(25)

In a case like case 1, Gaselee, J., said: “In the regular course, if a servant has left a cousiderable time, the presumption is that all the wages have been paid, and that makes it proper to consider whether, in this case, the facts proved rebut that presumption. In a case tried a few years ago at Guild Hall, which was an action by a workman at a sugar refinery, a witness proved that the plaintiff bad worked there for more than two years. But Abbott, C. J., said, that he should direot the jury to presume that men employed in that way were regularly paid every Saturday night, unless some evidence was given on the part of the plaintiff to satisfy the jury that the plaintiff had in point of fact never been paid; and as no such evidence was produced the plaintiff was nonsuited."


(G.) 1. A. sued B. for the price of eleven hogs sold by A. to B. B. pleaded payment. It was proved that A. went to B.'s house to settle for the bogs, that he had po money when he went in but had when he came out,

(22) Sayles v. Olmstead, 66 Barb. 590 (1873). (23) Lucas v. Novisdienski, 1 Esp. 296 (1795). The words

terms cash " on an unreceipted bill of goods sent by a wholesale to a retail dealer raise no presumption of law that the goods were paid for before they were shipped. Wellauer v. Fellows, 48 Wis. 105 (1879).

(24) Boyd v. Reed, 6 Heisk. 631 (1871).

(25) Whistler v. Drake, 35 Iowa, 103 (1872). For other CASES in which payment has been inferred from circumstances see Connecticut Trust Co.v. Melandy, 119 Mass. 450 (1876); Alvord v. Baker, 9 Wend. 323 (1832); Risher v. The Frolic, 1 Woods, 92. Whether the taking of a negotiable note for a pre-existing debt is a payment of that debt is a question on which the authorities are in conflict. See Strang v. Hirst, 61 Me. 9 (1871), where the cases on both sides are reviewed.

which money he stated he had received of B. The presumption is that A. was paid.(26)

In case 1 it was said: “If he had no money, went to defendant to settle for the hogs and when he left them had money, and said he got it from ther, it needs no argument to show that it is legitimate to presume,or at least the jury may presume therefrom, that he did settle and get his pay.”

In case 1 it was said: “It has been earnestly contended that the facts furnished a legal ground on which the jury might have presumed that the defendant had paid or accounted to the heirs of the intestate for the amount of the notes without the formality of any proceeding in the Probate Court by way of a settled account and a decree thereon, and that the judge should have left this question to the jury. The obvious reply to this objection and argument, is that the law does not presume that an administrator does wrong; it does not presume that the defendant did what by law he had no right to do, that is that he had made an unauthorized payment to the heirs under the circumstances mentioned. He was bound to account to the judge of Probate, and he had no right to pay the heirs but under decree. To presume it would be to presume against law and right. We do not mean to to say that had there been proof that the amount of the notes had been actually apportioned, and paid to the several heirs, though without a decree of the Probate Court, it might not, in a hearing in chancery, be a bar to an execution for any thing beyond nominal damages. It would be as strange to sanction the presumption where mentioned as that which was relied upon in another part of the argument to prove that the intestate had forgiven the debt due on the notes. Wrongs and gifts are not to be presumed; they must be proved."

JOHN D. LAWSON. St. Louis, Mo.

RULE VI. The presumption in Rule 5 (B. and C.) does not arise, where the debtor had the means of obtaining possession of or of cancelling the obligation other than by paying it, (b) nor in D. and E. where the debt paid was not the debtor's alone.(;)


(H.) 1. A father held the note of his son for $425. On the father's death his representatives sued on the note; but the son produced it cancelled. It appeared that he bad the means of access to his father's papers. There was no presumptiou that the note had been paid.(27)

In case 1 it was said: “Is the production of this note by the defendant, under the facts of this case, evidence of its discharge when it is proved not to have been paid or satisfied. I think it is not. Pothier (Obligations 73) says, that Boiseau holds that possession of the note affords a presumption of its payment; but if he allege a release he must prove it; for a release is a donation and a donation ought not to be presumed. Pothier differs and thinks it should be presumed unless the creditor shows the contrary. But Pothier agrees with Boiseau, that if the debtor was the general agent or clerk of the creditor having access to his papers, possession alone might not be a sufficient presumption of payment or release--so if he was a neighbor into whose house the effects of the creditor had been removed on account of a fire. The latter proposition seems applicable to this case. Here the case shows without contradiction that the defendant living at home with his father had a key that fitted his father's desk where this note was kept.

(J.) 1. A. was indebted to B. on a note made by himself and others. After the maturity of the note A. rendered services to B. who paid him money therefor. In a suit on the note by B. there is no presumption that A. had paid it.(28)

In case 1 it was said, that as all the parties to the note were joint makers and equally bound, there could be no presumption that A. settled what was not exclusively his own debt.




DRAKE V. CHICAGO, R. I. & P. R. Co. Where a railroad company has an easement to run its cars

over a track constructed through a subservient estate, where the effect of the construction of an embankment would be to obstruct the passage of surface water and damage the surrounding estate, but sufficient drainage can be secured by the construction of a ditch or culvert, it will not be presumed that the company, when purchasing the right of way, was desirous of paying for the right to obstruct the water; and if they did not pay for this right their use of the easement binds them to furnish the proper drainage. An instruction that they must construct their embankment so as to furnish this drainage is cor

rect. Where a person discovers that he is maintaining a nuisance,

and abates it, but suffers it to arise again, he is liable, without notice, although the nuisance was created origi

nally by his grantor. When, since a cause of action accrued, the statute of limita

tions has run, but damage has continued to be done within the time provided by statute, the action is not barred.

Powers v. Council Bluffs, 45 Iowa, 652, distinguished. Where ungrown crops are destroyed by being flooded, a cal

culation of what the crops would have been worth, based upon the value and quantity of other crops, is improper evidence, and should be excluded.

APPEAL from Van Buren District Court. ter Action to recover for damages alleged to have been

ROLE VII. The presumption of payment is stronger than the presumption of continuance, but weaker than the presumption of innocence.

ILLUSTRATIONS. i. An action is brought on an administrator's bond to compel him to account for and pay over the amount of a private debt due from him to the intestate. Twenty-four years have elapsed since the bond was given. There is no proof of a decree of distribution ordering him to pay to the heirs. Therefore the presumption of payment and the presumption of innocence (arising from the fact that he would have violated his duty in paying without a decree) conflict, and the latter must prevail.

(26) Grey v. Grey, 47 N. Y. 552 (1872); Kenney v. Public Admr., 2 Bradf. 319 (1853).

(27) Mechanics' Bank v. Wright, 53 Mo. 153 (1873). (28) Potter v. Titcomb, 7 Me. 302 (1831).

sustained by reason of the accumulation of water on the plaintiff's land, caused by the construction of the defendant's embankment without the construction and maintenance of proper ditches and culverts. There was a trial to jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

M. A. Low, for appellant.

H. B. Hendershot and Sloan, Work & Brown, for appellee

*19 N. W. Rep. 215.

ADAMS, J. The road was constructed in 1870 by the road Co., 67 Me. 353; Lynch v. Mayor, 76 N. Y. 69; 32 Chicago & Southwestern Railroad Company. The de- Am. Rep. 271; Taylor v. Fickas, 64 Ind. 167; 31 Am. fendant in 1872 succeeded to the rights of that com- Rep. 114; Gibbs v. Williams, 25 Kan. 214; Grant F. pany. At the time the road was constructed the land Allen, 41 Conn. 156. in question was owned by the plaintiff's grantor. The As holding a different doctrine, the plaintiff cites plaintiff became the owner in 1874. From the time of Ogburn v. Connor, 46 Cal. 346 ; 13 Am. Rep. 213; Foo. the construction of the road in 1870 to 1876 no damage tle v. Clifton, 22 Ohio St. 247; Parter v. Durham, 74 N. appears to have resulted to the land in question. In C. 769; Gillham v. Madison Co. R. Co., 49 DI. 484; the latter year the plaintiff began to complain. Soon Gormley v. Sanford, 52 Ill. 158; Livingston v. McDonafterward the defendant constructed a ditch along its ald, A Iowa, 160; Cornish v. C., B. & Q. R. Co., 49 id. right of way from the plaintiff's land to an openiug in 378; Van Orsdol v. B., C. R. & N. R. Co., 56 id. 470; 9 the road where the same was constructed upon trestle N. W. Rep. 379. work. This ditch was reasonably successful as a drain In the case last cited the court held that a railroad until 1880, when it became obstructed by accumulated company could not be allowed to obstruct a natural dirt and other matter, and wbile the defendant made channel of water. In Livingston v. McDonald the some effort to remove the obstructions, they were not court held that the owner of the higher land could not in fact sufficiently removed, and during the cropping be allowed to collect water and precipitate it in inseasons of 1880 and 1881 water accumulated upon the creased quantities to the land below, to the injury of plaintiff's land, being prevented primarily by the em- such land. The question as to whether a land-owner bankment from escaping, and not afforded a sufficient can be allowed, by changing the surface of his land, or outlet by the ditch. Certain crops were destroyed, erecting improvements thereon, to prevent the escape and a portion of the land was rendered wholly untilla. of surface water from adjacent land, where the same ble. The defendant contends that it did not become did not flow through any channel, has never been deliable for any damages, and that if it did this action is termined by this court; and we have to say that it apbarred by the statute of limitations; and furthermore pears to us that such question does not necessarily that the court mistook the proper means of damages arise in the case at bar. The cases cited arose between and allowed improper evidence to be introduced. adjacent owners.

1. The first question which represents itself as to There is no evidence that the defendant owns the whether the defendant owed the plaintiff any duty in land which it occupies with its road. Its right was respect to the surface water. The court below thought probably that of an easement. It is not claimed by that it did. It gave an instruction in these words: the plaintiff that the defendant is a mere trespasser, “In my judgment the railroad company is under legal and in the absence of any averment or evidence to obligations in constructing its railroad through the that effect we could not assume that it is. The parties country, in crossing farms and land generally, to so have proceeded upon the theory that defendant's occonstruct its embaukment as not to flow surface water cupancy is rightful. In the absence then of evidence back from the land through which it passes. I do not as to the extent of defendant's right in the premises, think that the common law, with reference to the we may assume that it is sufficient to make its occuright of owners of town lots or other lands to fight sur- pancy rightful, and we cannot assume more. We may face water from them, can justly be made to apply to proceed then upon the theory that the defendant has railroad compauies."

an easement. The plaintiff's testimony shows that The general doctrine relied upon by the defendant the railroad crosses his land, and we find no evidence to the effect that every laud-owner has the right to ex- to the contrary. clude surface water from his premises was fully recog- The defendant's estate then appears not only to be nized in O'Connor v. Fon du Lac, A. & P. Ry. Co., 52 an easement, but it is one to which the plaintiff's es. Wis. 526; 38 Am. Rep. 754; 9 N. W. Rep. 287, and held tate is the subject or servient estate. The easement, to apply even to railroad companies. The court in we may assume, was acquired by proceedings for couthat case said: “The company has only obstructed a demnation under the statute, or by purchase, and it ditch which drained or carried off surface water from matters not which. The important question is as to the plaintiff's premises. We do not think that the de- what the defendant or its grantor, the original owner fendant was bound to keep that ditch open on its own of the easement, must be presumed to have paid for. land for the convenience of the plaintiff. In other In Stodghill v. C., B. & Q. R. Co., 43 Iowa, 26, it was words, the owner of land is under no legal obligations held that the defendant paid for what the commisto provide a way for escape of mere surface water com- sioners should properly have considered in their estiing on to his land from the land of his neighbor, but mate, and among the things was not included the right has the right change the surface so as to interfere to divert natural stream of water. On the other with or obstruct the flow of such water."

hand it is to be observed that in Sabin V, Vermont Iu Gannon y. Hargadon, 10 Allen, 109, a case between Cent. R. Co., 25 Vt. 363, it was held that the right-ofadjacent land-owners, the court said: “The right of way damages covered the right to cast rock on the adthe owner of land to improve and occupy it in such jacent premises by blasting, so far as was necessary in manner and for such purposes as he may see fit, either the construction of the road. The draining of wells by changing the surface or the erection of buildings or and the diversion of water courses, it is said, are covother structures thereon, is not restricted or modified ered by the right-of-way damages where the same are by the fact that his land is so situated with reference necessary in the construction of the road. Prop'rs of to that of adjoining owners that an alteration in the Locks and Canals v. Railroad Co., 10 Cush. 485. If we mode of its improvement or occupation in any portion could suppose a case where the construction of a railof it will cause water which may accumulate thereon road would necessarily interfere with the flow of surby rains and snows falling on its surface or flowing on face-water, and cause it to accumulate and stand on it over the surface of adjacent lots, either to stand in the land from which the right of way is taken, the inunusual quantities on other adjacent lands or pass jury that would accrue therefrom should, we think, be into and over the same in greater quantities or in other considered by the commissioners, and embraced in directions than they were accustomed to flow." See their appraisement of right-of-way damages. The also in this connection Parks v. Newburyport, 10 Gray, land-owner is entitled to be paid, not merely the value 28; Wilson v. Mayor, etc., 1 Den. 595; Cairo R. Co. v. of the land taken, but for all incidental injuries which Stevens, 73 Ind. 278; 38 Am. Rep. 139; Barkley v. Wil- must necessarily result from the proper construction cox, 86 N. Y. 140; 40 Am. Rep. 519; Morrison v. Rail- and maintenance of the road. Kucheman v. C., C. &

D. Ry. Co., 46 Iowa, 466; Imlay v. Railroad Co., 26 garded as being received at one time, and that being Coon. 249.

more than five years before the commencement of the But the undisputed evidence in the case at bar shows action, it was held to be barred. But the injury in that that the drainage of the surface water from the plain- case was of such a character that it was beyond the tiff's premises was easily maintainable by the con- city's power to remedy it. The remedy to be applied, struction and maintenance of a ditch along the de- if any, was by the construction of a wall on the plaintfendant's right of way to its trestle work. The case iff's

's premises where the city had no right to go. The is not different from what it would have been if the remedy in the case at bar is to be applied on the dedefendant could bare effected the drainage by the fendant's premises, and that too in the discharge of a construction and maintenance of one or more culverts. subsisting obligation. The case falls under McConnell Where the effect of a mere embankment would be to v. Kibbe, 29 111. 483, and Bowyer v. Cook, 4 Mau., Gr. & obstruct the passage of surface water and cause damage S. 236. In our opinion the plaintiff's action is not to the premises from which the right of way is taken, but barred. sufficient drainage can be easily secured by a ditch or 4. The plaintiff was allowed, against the objection of culvert, it appears to us that when the company ap- the defendant, to testify in substance that the land in plies for a right of way it could not be presumed to be question would, if it had not been flooded, bave prodesirous of securing and paying for the privilege of duced as much corn as he raised in other land, and obstructing the passage of the water. Such being our that he guessed that it would have produced from 40 view, we could not say that the right to obstruct the to 50 bushels per acre, and that the corn would have passage of the water was included in the right-of-way been worth $15 per acre. It is not usual, we think, damages. The owner then of the premises from which where ungrown crops are destroyed by being flooded, the right of way was taken was paid, as we must pre- to allow witnesses to go into a definite calculation of sume, upon the theory that the company preferred to what the crops would have been worth, based upon protect him against this incidental injury. The rery evidence as to the quantity and value of other crops. enjoyment of the easement therefore carried with it All calculations which embrace speculative profits day by day the obligation to furnish this protection. should, as far as the nature of the case will allow, be Possibly this would not be so if the evidence showed carefully excluded. Ungrown crops are a part of the or we could assume that the company acquired the realty. The injury done is to be deemed an injury to fee-simple title to the land which it occupies. With- the realty. The question is as to how much the premout committing ourselves to an approval of the in- ises were diminished in value. struction as a general and unqualified proposition, we In Chase v. N. Y. Cent. R. Co., 24 Barb. 273, an achare to say, that as applied to the facts of this case, it tion for damages sustained by reason of an overflow of appears to us to be correct.

water upon the plaintiff's premises, caused by the de2. It is not shown that the plaintiff expressly noti- fendant's embankment, it was held that the jury was fied the defendant of the effect upon his land of the correctly instructed that the measure of the plaintiff's construction of the embankment without suitable damages was the difference between the value of the drainage. The defendant insists that inasmuch as the plaintiff's premises immediately before the injury hapembankment was not constructed by itself, but by its pened, and the value of the same immediately after. grantor, it did not become liable in the absence of no- Substantially the same rule was held in Easterbrook v. tice. It cites and relies upon Slight v.Gutzlaff,35 Wis.675; Erie Ry. Co., 51 Barb. 94. Where the flooded prem17 Am.Rep. 476. In that case yan, C. J., says: “When a ises are covered by an upgrown crop their value should lessee or grantee continues a nuisance of the nature not of course be estimated with reference to the crop. But essentially unlawful,erected by his lessor or grantor, he then the estimate should be made with reference to is liable to action for it only after notice to reform or the crop at the time of the injury. In the case at bar abate it;" citing McDonald v. Gilman, 3 Allen, 264; the flood occurred in the early part of the season, when Johnson 7. Lewis, 13 Conn. 307; and several other the corn was for the most part about a foot high. The

See also in this connection the late case of premises were enbanced in value much or little by the State v. Robinson, 52 Iowa, 228; 2 N. W. Rep. 1104. crop, according to its condition and prospects. But But the case at bar, it appears to us, is distinguishable. whatever its condition and prospects might have been, The defendant seems to have becomo aware of the ef- it, like all other ungrown crops, was exposed to adfect of the embankment in preventing the escape of verse contingencies, and its value could not, we think, surface-water from the plaintiff's land, and actually properly be estimated upon the basis of the proven abated the nuisance, but afterward suffered a nuisance value of some other crop which matured, because the to arise again by suffering the ditch to become ob- very fact that it was exposed, and was involved in more structed. We have discovered no decision or principle or less uncertainty, detracted from its value as it stood upon which we could hold that the defendant was en- at the time of the injury, and we are confined in our titled to notice.

estimate to that time. 3. We have next to consider whether the plaintiff's In other respects also we think that the evidence adclaim is barred by the statute of limitations. The first mitted was unreliable. It appears from the evidence injury was sustained in 1876. This action was brought that the corn which was destroyed was upon low in 1882, more than five years thereafter. Without ground. The neighboring fields of corn which maquestion, an action for the injury sustained in 1876 tured must, we think, have been upon higher ground. would be barred, but the plaintiff makes no claim for Now if the season was already wet, as we infer, at the that injury. The defendant's position however is that time of the injury, it seems to us that the comparison the moment the plaintiff's land was overflowed he bad sought to be made was an unsafe one, and that the a right, if the circumstances were such as to give him evidence should have been excluded. It was proper to a rigbt of action, to maintain an action once for all show any fact or circumstance pertaining to the conupon the theory that no protection would be fur- dition and prospects of the crop, so far as the same nished him, and that his damages would be measured were discoverable at the time of the injury, beby the diminution of the value of his premises by the cause such facts and circumstances affected the value construction of the road in the manner in which it of the premises at that time. The jury was entitled was, without ditch or culvert then or thereafter to be to consider whatever it may be presumed would have furnished. He relies upon Powers v. Council Bluffs, been considered by a careful person desiring to buy. 45 Iowa, 652. In tbat case the whole injury was re- Looking at the premises in this way, as they were im


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