Barker v. Hibbard.

being so highly beneficial to the petitioner, his act in making the assign. ment must in law be regarded as valid."

An infant has authority to do what he is bound by law to do. Co. Jitt. 172, a; Lord MANSFIELD, in Zouch v. Parsons, 3 Burr. 1801; PARsons, C. J., in Baker v. Lovett, 6 Mass. 78, 80. He may execute a bond to the complainant to appear and answer to her complaint charging him with being the father of a bastard child, and to abide the order of the court thereon. Mc Call v. Parker, 13 Metc. 372. He may execute a bond conditioned to indemnify a town from the support of his bastard child. People v. Moores, 4 Den. 518. He may settle with the mother of his bastard child, and execute the instruments necessary in making such settlement. Gavin v. Burton, 8 Ind. 70.

We think that it must be held that an infant is liable for the services of his attorney in defending him against a bastardy proceeding. This may, it is true, sometimes subject him to larger liabilities than he would incur by making no defense and procuring his liberty by applying for a discharge from imprisonment after he had been found chargeable; but it is to be presumed that he is innocent until he is proved to be guilty. A bastardy proceeding, though held to be a civil action, can only be sus tained upon the ground that the defendant has committed a criminal offense. His good name is at stake as well as his property, if he has any or ever acquires any, for a judgment rendered against him will be valid, whether he is or is not liable to pay his attorney; and, besides, if he is found chargeable, the court may not release him on satisfactory evidence of his inability to comply with the order.

If an infant has property, the law provides for the appointment of a guardian to hold and manage it. If he has property and is without a guardian, it is very easy to procure one to be appointed. There can rarely be occasion for an infant to employ an attorney in suits relating to his property; but if he has no property, the law does not contemplate that he shall have a guardian; and if one should be appointed in such a case, it would be unreasonable to expect him to employ at his own expense an attorney for his ward. If an infant has no authority to pledge his credit to an attorney when arraigned as the putative father of a bastard child, he may sometimes be prevented from getting bail, or from making a successful defense.

We are of the opinion that the consequence of holding that he has such authority are much more likely to be beneficial then prejudicial to his interests. He will only be liable for services and expenses which it was reasonable to render and incur. That his own directions were followed, unless there was reasonable cause to believe it was for his inter

Garland v. Towne.

est to follow them, will be immaterial. Any express promise he may make to pay exorbitant fees to his attorney will be void. He will only be liable upon an implied promise to pay a reasonable sum. Reeve's Dom. Rel. [229] [230]; Bing. Inf. & Cov. (2d Am. ed.) 87, note; Locke v. Smith, 41 N. H. 346. Charges incurred in making or attempting to make a defense, which there was no good reason to believe it was for the interest of the infant to make, will not be recoverable. PARKER C. J., in Mc Crillis v. Bartlett, 8 N. H. 569, 572. But according to the agreement of the parties, the services of the plaintiff for the defendant "were such as usually are performed in similar cases, and the charges reasonable and just, and the defendant is liable therefor unless he is relieved of such liability on account of his being a minor." There must therefore be judgment for the plaintiff for the amount of his account.

The conclusion to which we have arrived has not been affected by th circumstance that the defendant, at the time he employed the plaintiff had been emancipated by his father. See Locke v. Smith, 41 N. H. 346.

Judgment for the plaintiff.

GARLAND V. Towne.

(55 N. H. 55.)

Nuisance-constructing roof so as to project snow and ice into highway.

Declaration that defendant's building abutting a highway was so constructed that the snow and ice may accumulate upon the roof and thence fall into the street, and that it did so fall and injure the plaintiff. Held, defective in not charging defendant with negligence.

ACTION on the case.

The first count alleged that defendant, on

February 4, 1873, owned a house abutting on Elm street, in Manchester, which was so constructed as to obstruct the fall of snow and t accumulate snow and ice and precipitate them upon said Elm street, and Chat plaintiff while passing along said street, on said date, was injured by said falling snow and ice.

The second count was like the first, except that it contained an allegation that the roof and eaves of the defendant's building project over and nto Elm street, and also the following: "And while so passing along and on

Garland v. Towne.

said sidewalk as aforesaid, a large quantity of ice and snow, which had accumulated on the roof of the said defendant's said building, and which the said defendant, though well knowing thereof, had long and negligently suffered to be and remain upon the roof and eaves of the building aforesaid, endangering the life and limbs of those having occasion to pass over and along said street, was precipitated and fell upon the plaintiff, striking her upon the head," etc.

The defendant demurred, generally, to each of the counts of the declaration, and the questions thereon arising were reserved.

Morrison, Stanley & Hiland, for plaintiff.

S. N. Bell, for defendant.

LADD, J. In the trial of this cause, I think it will be for the jury to say whether the injury of which the plaintiff complains was caused by the negligence, that is, the want of due care, on the part of the defendant. I suppose the fact that ice slid from the roof upon the sidewalk or this particular occasion is evidence to be considered on the general question of the defendant's negligence; and I see no reason why the jury might not legally find negligence from that circumstance alone, if unexplained. It was the general duty of the defendant to prevent the sliding of snow and ice from her roof upon the sidewalk; she was bound to guard against such a result by the exercise of due and proper care. When, therefore, the thing she was thus bound to guard against and prevent happened, I should say res ipsa loquitur, and if no explanation were offered, the jury might find negligence without other proof. It is much like the recent case of Kearney v. The London, Brighton, etc., Railway Co., Law Rep., 6 Q. B. 759. There, as the plaintiff was passing along a highway under a railway bridge of the defendants, which was a girder bridge resting on a perpendicular brick wall with pilasters, a brick fell from the top of one of the pilasters on which one of the girders rested; -a train had passed just previously. The question was, whether, there being no other evidence of negligence, a verdict for the plaintiff could be allowed to stand; and it was held, that the defendants being bound to use due care in keeping the bridge in proper repair, the falling of the brick was evidence from which the jury might infer negligence in the defendants.

It has been thought that the doctrine laid down in Rylands v. Fletcher, Law Rep., 1 Exch. 65, affirmed on error, Law Rep., 3 H. L. 330, is applicable to cases of this sort. In that case the defendants constructed a reservoir on land separated from the plaintiff's colliery by intervening

Garland v. Towne.

land; mines under the site of the reservoir, and under part of the intervening land, had been formerly worked, and the plaintiff had, by workings lawfully made in his own colliery and in the intervening land, opened an underground communication between his own colliery and the old workings under the reservoir. It was not known to the defendants, nor to any person employed by them in the construction of the reservoir, that such communication existed, or that there were any old workings under the site of the reservoir, and the defendants were not personally guilty of any negligence; but, in fact, the reservoir was constructed over five old shafts leading down to the workings. On the reservoir being filled, the water burst down these shafts, and flowed by the underground communication into the plaintiff's mines. Held, reversing the judgment of the Court of Exchequer (3 H. & C. 774), that the defendants were liable for the damage so caused.

In the opinion of the court, by BLACKBURN, J., the decision is placed distinctly and emphatically on the ground that one who, for his own purpose, brings upon his land, and collects and keeps there, any thing likely to do mischief if it escapes, is prima facie liable for all the damage which is the natural consequence of its escape. Water is, in this respect, put in the same category with beasts wont to rove and do mischief, filth and noxious odors. And the same view was taken by Lord CAIRNS, Chancellor, and Lord CRAN WORTH, who delivered opinions in the House of Lords.

66

I am not aware that any court on this side the Atlantic has gone so far as this; and I apprehend it would be a surprise, not only to that large class of our people engaged in various manufacturing operations who use water-power to propel their machinery, and for that purpose maintain reservoirs, but to the legal profession, to hold that, in case of the breaking away of such reservoirs, there is no question of care or negligence to be tried, but that he who has thus accumulated water in a non-natural" state on his own premises is liable, at all events as matter of law, in case it escapes, for the damage caused by it. See Mayor of New York v. Bailey, 2 Den. 433. But however that may be, it is to be borne in mind that ice and snow, although the material of which they are composed is water, are, nevertheless, solids, and, as such, are no more liable to escape control, and pass upon the premises of an adjoining proprietor and there do mischief, than any other solid bodies of a similar material construction, that is, of like specific gravity and external form. Water, cr the other hand, being a liquid, the particles of which move easily upon each other, is constantly seeking a level, and so exerts a constant force which must be constantly restrained: and all the mischiefs of an inunda tion are certain to follow the breaking away of the barriers erected for

Garland v. Towne.

its control. This is its nature as much as it is the nature of cattle to rove and eat a neighbor's corn, or of filth from a privy to be offensive, or of unwholesome stenches to be diffused, so as to contaminate the air which a neighbor is compelled to breathe.

As a general proposition, it is safe to say that the owner of land has a right to make a reasonable use of his property; and that right extends as well to an unlimited distance above the earth's surface as to an unlimited distance below. He may not only dig for a foundation and a cellar as deep as he pleases, but he may erect his building as high as he pleases, into the air, subject all the time, of course, to a proper application of the doctrine contained in the maxim sic utere tuo ut alienum non lædas. The erection and maintenance of buildings for habitation or business is a customary and reasonable use of land. Of course the land-owner, in making such erections, must be held to the exercise of all due care against infringing the legal rights of others to be determined by the na ture of the rights and interests to be affected and all the circumstances of each particular case. In this climate where snow is sure to fall in considerable quantities at intervals during a considerable portion of the year, and equally sure in the end to melt and find its way back to the earth in the form of water or ascend into the clouds as vapor, the builder must undoubtedly be held to the exercise of all due and reasonable care against injury to others from the effect of these natural causes, operating according to the known laws of nature, in the situation of things as altered from their natural state and condition by his own acts.

I think this case falls within that class of cases referred to by BRONSON, C. J., in his elaborate and useful opinion in Radcliff's Executors v. Mayor of Brooklyn, 4 N. Y. 200, where it is held that a man will not be answerable for the consequences of enjoying his own property in the way such property is usually enjoyed, unless an injury has resulted to another from the want of proper care or skill on his part.

The doctrine is clearly stated in the first head-note to Rylands v. Fletcher, as reported, Law Rep., 3 H. L. 330, as follows: "Where the owner of land, without willfulness or negligence, uses his land in the ordinary manner of its use, though mischief should thereby be occasioned to his neighbor, he will not be liable in damages." This is a broad statement of a general legal proposition, and must not be regarded as an expression of opinion upon any specific question of evidence that may arise on the trial of this case.

It is quite possible these views may be found, on careful examination, not to be so much at variance with the recent decisions in Massachusetts in the case of Shipley v. Fifty Associates, 101 Mass. 251; S. C., 3 Am.