and far more difficult, I should think, to trace as precise causes acting to occasion a loss.

Applying the principles of construction already mentioned, it would be placing upon a policy-holder too great a burden to require him in a case like this to demonstrate with exactness what particular force operated to make his loss, and that there was some extraordinary action of the winds or currents, or extraordinary stages of water, or the like. It would emasculate these policies and reduce their value to permit this company to escape on the facts of the case, because, forsooth, the witnesses could see nothing in wind, current, or navigation that was not in the usual and ordinary course.

I have, following the counsel, treated this case as if this raft were a "vessel," but I think it is not. The policy is not one on a vessel, but on the cargo of a vessel, and is called by its terms a "cargo policy." I have not been able to find any discussions of the subject of insurance of rafts, but in an elaborate case the learned judge of the eastern district of Michigan, sitting in this court, held that a raft of logs floating unattached to any vessel and navigated by men upon it was not a vessel within the admiralty jurisdiction. Raft of Logs, 1 Flippin, 543. I think it must be treated as the cargo of the tow-boat having it in charge, and not as a "vessel." But so treated the principles of insurance law applicable to the case are the same, and the distinction is quite immaterial. It is mentioned here merely out of caution, and to explain the method of dealing with the subject. On the whole, the plaintiff must have judgment for his partial loss, and if the parties cannot agree on the amount, I will adjudge it, on application to enter the judgment.

ARN v. CITY OF KANSAS.

(Circuit Court, W. D. Missouri. October Term, 1882.)

1. SURFACE WATER-INJURY FROM DIVERTING.

The law regarding surface water is that no individual or corporation can make any change thereof to the injury of any one without being responsible in damages for such injury.

2. MUNICIPAL CORPORATION-INCREASING FLOW OF SURFACE WATER.

If a city constructs a sewer in such a manner that an additional flow of surface water into a lot is caused thereby, the owner of such lot may recover such damages as may have been caused by such increased flow.

3. SAME-CONSTRUCTING SEWERS-INJURY TO PROPERTY.

A city, in the progress of constructing its sewerage, is not responsible for any depreciation in the rental value of property caused by the bad smells of a sewer in course of construction, unless it is kept open an unreasonable length of time.

Bouscaron & Kenyon, for plaintiff.

Mr. Twitchell, for defendant.

KREKEL, D. J., (charging jury.) The plaintiff, Arn, brings this suit to recover of the City of Kansas damages for the diminution of the rental value of a house and lot situated at the junction of Nineteenth and Main streets, caused by the foul and filthy discharge of a sewer upon part of the plaintiff's premises, and for the washing away of the soil of part of the lot, thereby damaging the lot itself. It appears that a certain territory now within the city limits of Kansas City naturally drains its surface water across Main street and into a lot adjoining the lot of plaintiff, from which it passes in its natural flow into the lot of plaintiff. It further appears that in 1877 the City of Kansas constructed a culvert across Main street to improve the street, and secure a proper passage over it of the surface water flowing at the place of constructing the culvert. And it still further appears

that in 1880 the progress of the city made it necessary to construct a sewer from Walnut street along Eighteenth to Main street, and thence along Main street into the culvert before spoken of, making the culvert a part of the sewer which is now extended into Nineteenth street, thence west and parallel to plaintiff's lot.

The matter in dispute is, first, the location of the culvert, it being contended on the part of plaintiff that it is not located in the place of the old drainage, but that the location has been so made as to change the flow of the surface water, thereby causing the water to wash away the soil and injure the value of the lot itself, as well as the rental of the premises. The law regarding surface water is that no change thereof can be made to the injury of any one. No individual or corporation can make such change, and if it is done, and injury is incurred thereby, the wrong-doer is responsible in damages. You are therefore instructed that if you shall find from the testimony that the defendant, the City of Kansas, has constructed the sewer in question, not along the ancient drainage, but so diverted the natural course of the water as to change the force and effect of the flow that the soil of plaintiff's lot was washed away, you should find this issue for plaintiff, and allow him such damage as plaintiff has sustained thereby. But if the jury shall find from the evidence that the sewer in controversy was constructed upon the ancient flow of

the water, they should find this issue for the defendant. It is an undis. puted fact that the water flowing through the sewer along Eighteenth street from Walnut to Main, and down Main street, carries off a part of the surface drainage which formerly flowed across Main street, at or near the place of the location of the culvert. But it is contended that by virtue of the improvements along Eighteenth and Main streets an additional amount of water is discharged into this sewer, and that such additional water increased the flow of water into plaintiff's lot, and injury resulted therefrom. Regarding this additional flow of water, if such has been shown to exist, you are instructed that plaintiff has a right to recover such damage as has been done by it to his lot. It is the damage done by the water which may have been added by virtue of the sewer spoken of, and not for the whole water; in other words, if the sewer gathered other than surface water, and damages were done on account of such increase of water, plaintiff may recover such damages.

We now come to the injury which is claimed to have resulted from the discharge of nauseating and filthy water and deposits, affecting the rental value of the premises. Regarding this you are instructed that the City of Kansas, in the progress of constructing its sewerage, is not responsible for the bad smells of a sewer in course of its construction, unless kept open an unreasonable length of time. The reasonableness of the time is to be judged of by the circumstances testified to. If you shall find from the testimony that the sewer testified to was left an unreasonable time in the condition it was, and in consequence of the bad smells thereby created the plaintiff could not rent his house at what it was really worth, you will allow him the difference between the real rental value and the rent he received, and this for the length of time the sewer was left open and plaintiff sustained damages in consequence thereof. As to the washing away of the soil of plaintiff's lot you are instructed that if you shall find from the testimony that an increase of flowing water was caused by the sewer run into the culvert, and that such increase of water contributed to the washing away of the soil of plaintiff's lot, you will allow him such damages on that account as will compensate him for the restoration of the lot to the condition it would have been in had such additional flow of water not takon place.

In your verdict, if you find for the plaintiff, you will find the damages sustained on account of rental value and on account of damages to the lot separately, and then state the whole of the damages allowed. If you find the issues for the defendant, you will so state.

NAT. BANK OF CHESTER Co. v. COM'RS OF CHESTER Co. and others.*

(Circuit Court, E. D. Pennsylvania. October 2, 1882.)

1. CONSTITUTION LAW-STATUTE-SUBJECT EXPRESSED IN TITLE-REPUBLICATION OF ORIGINAL ACT IN AMENDMENT-TAXATION-NATIONAL Bank.

By section 17 of act of June 7, 1879, entitled "An act to provide revenue by taxation," the Pennsylvania legislature enacted that where any banks elected to pay a tax of six-tenths of 1 per cent. on the value of the shares, the shares, capital, and profits of the bank should be exempt from other taxation. By act of January 10, 1881, entitled "A supplement to an act entitled 'An act to provide revenue by taxation, approved June 7, 1879,'" the portion of the seventeenth section of that act containing the above provisions was re-enacted, with the exception that the exemption from taxation was confined to "so much of the capital and profits of such bank as shall not be invested in real estate." The whole section was not re-enacted, and there were some immaterial verbal alterations in the part which was set out. Held, that the act of January 10, 1881, did not violate the constitutional provision that no bill should contain more than one subject, which should be clearly expressed in the title. Held, further, that it did not violate a constitutional provision that no law should be amended by reference to the title only, but so much thereof as was amended should be re-enacted and published at length.

2. SAME-REPUGNANCY IN STATUTE.

It appeared that at the time of the passage of the act of 1881 the only national bank property taxable for local purposes was its real estate. Held, that this did not render the act void for repugnancy.

PER BRADLEY, J. To declare an act of assembly repugnant the repugnancy must appear upon its face, and must be in conflict with the main intent and object of the enactment.

Motion for injunction upon a bill in equity by the National Bank of Chester county, against the commissioners of Chester county, Pennsylvania, setting forth—

(1) That the plaintiff is an association for carrying on une business oi banking, duly incorporated under the national bank act of June 3, 1864.

(2) That, under the laws of the state of Pennsylvania, moneyed capital in the hands of individual citizens of said state is exempt from local taxation, and is subject to a state tax of four mills on every dollar of the value thereof, annually, and the shares of state and national banks are taxed at the same

rate.

(3) That the act of the legislature of Pennsylvania, approved June 7, 1879, entitled "An act to provide revenue by taxation," in section 17 thereof, provides as follows: In case any bank or savings institution, incorporated by this state, or any national bank, elect to collect annually from the shareholders thereof a tax of six-tenths of 1 per centum upon the par value of all the shares of said bank or savings institution, and pay the same in the state treasury on or before the twentieth day of June in every year, the shares, *Reported by Frank P. Prichard, Esq., of the Philadelphia bar.

capital, and profits of such bank shall be exempt from all other taxation ander the laws of this commonwealth."

(4) That the supreme court of Pennsylvania decided that, in the case of national banks paying the increased state tax, the exemption secured thereby extends to all local taxation whatever upon the real estate of such bank.

(5) That, shortly after the said decision of the supreme court of Pennsylva nia, viz., January 10, 1881, the legislature of Pennsylvania passed a certain other act, entitled "A supplement to an act entitled 'An act to provide revenue by taxation,' approved the seventh day of June, 1879," the third section of which provides as follows:

"Sec. 3. In case any bank or savings institution, incorporated by this state or the United States, shall elect to collect annually from the shareholders thereof a tax of six-tenths of 1 per centum upon the par value of all the shares of said bank or savings institution, and pay the same into the state treasury on or before the first day of March in each year, the shares and so much of the capital and profits of such bank as shall not be invested in real estate, shall be exempt from all other taxation under the laws of this commonwealth."

(6) That, in February, 1882, the plaintiff paid to the commonwealth of Pennsylvania, for the year 1882, the sum of $1,350, being a tax of six mill's upon the par value of all of the shares of the plaintiff's bank.

(7) That the plaintiff owns certain real estate in West Chester, Pennsylvania, on which the defendants have levied local taxes for the year 1882; that the third section of the act of June 10, 1881, is inoperative and void, for the following reasons: First, because the title to said act is in conflict with article 3, § 3, of the constitution of Pennsylvania, which provides: “Sec. 3, No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in the title." Second, because the third section of said act is in conflict with article 3, § 6, of the constitution of Pennsylvania, which provides as follows: "Sec. 6. No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to the title only, but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length," in this: that said third section materially amends the provisions of section 17 of the act of June 7, 1879, (to which it is a supplement,) and fails to re-enact and publish at length so much of said act of June 7, 1879, as is thereby amended. Third, because said third section of the act of June 10, 1881, in so far as it attempts to make the real estate of national banks taxable for local purposes, is inoperative and void for repugnancy, in this: Under the act of congress of June 3, 1864, known as The National Bank Act," only the shares and real estate of national banks are taxable under the state laws. The shares are not taxable at any higher rate than "moneyed capital of individuals." Moneyed capital of individuals is in Pennsylvania exempt from local taxation, and was so exempt prior to the passage of the said acts of June 7, 1879, and June 10, 1881. At the time of the passage of the act of June 10, 1881, the only national bank property taxable for local purposes was its real estate. The saving clause of the third section of the act of June 10, 1881, excepted from the operation of said act the only property to which the