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, upon demurrer, which alleged that a nolle prosequi had In the case of Bacon v. Toune, cited above, Chief been entered in the criminal action in substantially Justice Shaw says: "The same facts which would the same language used in the case at the bar, and the raise a strong auspicion in the mind of a cautious and court held the complaint sufficient. We think upou reasonable man against a person of notoriously bad I principle as well as authority, the entry of a nolle character for honesty and integrity would make a , prosequi upon an information, not upon the ground slight impression if they tended to throw a charge of that the information is insufficient upon its face, is an guilt upon a man of good reputation." It is said that end to the prosecution of that case, and that such nolle the evidence does not show that Mills had any knowl. prosequi cannot afterward be vacated, and further pro- edge of the previous good character of the plaintiff ceedings had iu that case, unless vacated at the same when the criminal proceedings were instituted against term at which it is entered. Bish. Crim. Proc., $ 1396; him. The evidence does however show that Mills had State v. Nutting, 39 Me. 359; Parry v. State, 21 Tex. 746. known the plaintiff for several years before the proseThe objection made to the sufficiency of the complaint cution was commenced, and in the absence of any tes. was properly overruled.

timony showing the contrary, we must presume that [Omitting question of evidence.]

he knew his reputation among his neighbors. There is but one other question, as to the admissi- There are a great number of exceptions taken to the bility of evidence on the part of the plaintiff which was

refusal of the court to instruct the jury as requested objected to by the defendent, which we deem neces- by the defendant, as well as to the instructions given sary to consider. On the trial the plaintiff was allowed by the court. Most of the instructions refused bear to give evidence of his previous good character, as a upon the question whether Hockert, the complaiving part of his case, and not in answer to an attack upon witness, had probable cause to make the complaint as such character by the evidence of the defense. This he did, and not upon the question as to the good faith evidence was all objected to by the defendant. Upon of the defendant, Mills, in setting on foot the prosethis question the authorities are somewhat in conflict. cution, if it was found that he did so set it on foot. This court has not heretofore passed upon the ques- After a careful reading of the instructions given by tion, and we are therefore at liberty to adopt the rule the court to the jury, we think, with oue exception, which seems to us the more reasonable. The question noted below, all the questions upon the main issue in seems to us to be this, in determining the probability the case were fairly submitted. The court very point. of the guilt of a party charged with a crime: Has his edly told the jury that the burden of proof was upon previous good character any bearing on the question ? the plaintiff to show-first, that Mills was in fact the We think this question must be answered in the affirm- real prosecutor of the criminal proceedings against the ative. The fact that it has weight in determining the plaintiff, and that without his interference, such proquestion of guilt, in all cases where there is any doubt ceedings would not have been instituted; and second, of the guilt of the accused party, is the basis of the that when such prosecutiou was so set on foot by rule in criminal actions, that the defendant may in all Mills, he (Mills) had no probable cause for believing such cases, and perhaps in all cases, give iu evidence the plaintiff guilty of the crime charged against him. his previous good character. The fact that he has The court also gave the jury the true meaning of the such character is some evidence, and often very.con- phrase "probable cause,' and stated what facts tended clusive evidence, of the innocence of the accused. to establish such probable cause, and what facts would When therefore a person is about to make a criminal tend to show a want of probable cause. complaint against a citizen of previously known good There are certainly no errors in the charge of the character and reputation, is reasonable that he court prejudicial to the rights of the defendant, unless should consider that fact with the other facts and cir- the contention of the learned counsel of the appellaut cumstances in determining the question of the prob- that no recovery can be legally had in this action, if ability of the guilt of the accused. If I lose my horse there is sufficient evidence in the case to establish the under circumstances which indicate that he had been fact that Hockert had probable cause for making the stolen, and shortly after he is found in the inclosure complaint and causing the defendant's arrest, is the of a man who has the reputation of being a horse law which must govern the rights of the parties in thief, I might have probable cause for believing that this action. This seems to have been the theory upon that man had stolen him; but if he was found under which the defense was conducted in the court below, like circumstances in the inclosure of a man whom I and if that be the true theory, then the judgment knew to have sustained a good reputation for many should be reversed on account of the inconsistent inyears, there would be a question, at least, whether I structions given by the court to the jury upon that would have probable cause to believe such man guilty point. The record discloses the fact that at the reof the theft. There are many cases which bold that quest of the defendant the learned Circuit judge inin a civil action, the character of the plaintiff is not in structed the jury in the first place, that "in order to issue until the same is attacked by the defendant, and entitle the plaintiff to recover in this action, the jury that until so attacked it is presumed to be good, and must be satisfied from all the eridence in the action therefore there is no necessity or propriety in giving that Mr. Hockert, the complainant in the criminal aoaffirmative proof of such character. This as a general tion, did not have probable cause to believe this rule is undoubtedly the true rule; but in an action for plaintiff, Woodworth, guilty of the offense with which the malicious prosecution of a criminal action, where he charged him.” Afterward in the general charge to the main question in the case is whether the defend. the jury, he says: “It will be borne in mind that the aut had probable cause for instituting such proceed- question is whether the defendant, at the time it is alings, an exception should be made. In such action the leged he procured the complaint to be made, bad plaintiff must prove a negative, that is, prove that the

probable cause for his acts. It might be that Hockort, prosecutor did not have probable cause to believe him at the time the complaint was made, did so in good guilty of the offense charged; and as bearing upon that faith and with probable cause, and yet the defendant question, he ought to be permitted to give evidence of

might be guilty, for it might be that the advice and his previous known good reputation. The following suggestions of defendant was what induced Hockert authorities are cited as sustaining our views on this to believe he had probable cause.'

" These proposi. question: Blizzard v. Hays, 46 Ind. 166; Israel v. tions are hardly consistent witb each other, and both Brooks, 23 IU. 575; Wade v. Walden, id. 425; Miller v. cannot be good law unless the rule in the cases of this Brown, 3 Mo. 127: Bacon v. Towne, 4 Cush. 217-240; kind is that when one instigates a criminal prosecuRodriguez v. Tadmire, 2 Esp. 720.

tion and another makes the complaint upon which the arrest is made, and the action is brought against the they established by undisputed evidence.

It wat instigator of the prosecution, no recovery can be had therefore properly submitted to the jury to find what unless there was a want of probable cause shown as to the facts were, and when so found, to apply the law as both parties. We think the court stated the true rule given by the court in determining whether a want of in his general charge, and that if the proof satisfied probable cause had been established by the testimony. the jury that Mills instigated and set on foot the Fagnanv.K'no.2,supra. The fact that the first instruction criminal prosecution, and that without his interfer- given at the request of the defendant is inconsistent ence it would not have been instituted, then if with that afterward given in the general charge, is 110 Mills had no probable cause to believe the plaintiff ground for reversing the judgment, as we are clearly guilty of the offense charged against him, a recovery of the opinion that the instruction first given, which could be had against him, although Hockert, the inan is most favorable to the defendant, was erroneous. who made the complaint, might have bad probable The defendant cannot take advantage of an erroneous cause for his action at the time the complaint was instruction given at bis request. On the whole we made. See Miller v. Mulligan, 48 Barb. 30. This case find nothing in the record which shows that the apwas similar to the case at bar in its main features and pellant has not had a fair trial in the Circuit Court, as to the evidence, and the court sustained the action and we cannot say that there is no evidence to support upon the rule above stated.

the findings and verdict of the jury. It seems to us that any other rule would work great The judgment of the Circuit Court is injustice. To illustrate, let us take a very bald case :

affirmed. One man, baving malice against another, takes the [See Hatch v. Cohen, 84 N. C. 602; 37 Am. Rep. 630. horse of a third person at night from the stable or in- -ED.] closure of such third person and puts him in the inclosure or stable the man against whom he enter

RIPARIAN RIGHTS - OBSTRUCTING WATERtains malice. The circumstances of the taking are

COURSE. such as to induce an ordinarily reasonable man to believe the horse was stolen. The man who removed the horse from the owner's stable or inclosure goes to

MICHIGAN SUPREME COURT, SEPT. 23, 1884. the owner and informs him that shortly after the horse was missing ho was informed by A., B., and C.

BOYD v. CONKLIN.* that the horse was seen in the inclosure of the person

A rural land owner has no right to put up such artificial baragainst whom he entertains malice, and acting upon

riers as will flood his neighbor's land with water that such information, a criminal prosecution is com- would otherwise escape over his own, for the mere purmenced by the owner against the person in whose in

poses of reclaiming the bed of a pond that has always been closure he was found. Clearly in such case, the per

on his premises, and of getting rid of the inflow. aon making the complaint might be entirely justified in what he did, and yet the malice and want of prob- ERROR to Lenawee. Opinion states the case. able cause on the part of the person who set him in motion would be perfectly apparent. The true rule is

A. L. Millard and Bean & Underwood, for plaintstated by Mr. Townsend in his work on Slavder and

iff. Libel, $ 428, p. 715, he says: “Although the facts Merritt & Wooden and C. A. Stacey, for defendants. known to the prosecutor may make out a prima facie

CAMPBELL, J. Boyd sued defendants for removing case of guilt against the plaintiff, yet if the prosecutor does not believe the plaintiff to be guilty, he acts with

part of a dam which he had built across the outlet

which drained an adjoining highway and higher lands out reasonable and probable cause." And certainly

adjacent. Lorenzo D. Dewey owned a farm running when the prosecutor or person instituting the prosecu

north of the highway about half a mile, and a swale tion knows that the suspicious circumstances against

ran through this land from north to south which the accused are all consistent with his innocence, and

crossed the road through a culvert, from which the he knows the accused is not guilty, he cannot have

water flowed across Boyd's farm to a pond on his land reasonable cause for his prosecution. See Turner v.

which has no surface outlet. The swale is crossed by Ambler, 10 Q. B. 252; Broad v. Ham, 5 Bing. (N. C.)

an old beaver dam near its north end, and a creek 722; Fagman v. Knox, 66 N. Y. 525. In the last

called Evans' creek, a little to the north of it, somecase cited, Church, C. J., says: “But however sus

times overflows, so that the water runs over this beapicious the appearances may be from existing circum

ver dam into the swale. The swale carries down all stances, if the prosecutor has kyowledge of facts which

the surface water on Dewey's land, and there was teswill explain the suspicious appearances and exonerate the accused from a criminal charge, he cannot justify

timony tending to show that it was partly fed by a prosecution by putting forth the prima facie circum-springs, although this was disputed. Both farms are stances, and excluding those within his knowledge

inclosed by a ridge, which prevents any water passing which tend to prove innocence.This view of the

from Dewey's land from escaping except through the

swale and into the pond, and there is no other way of case shows the pertinence of the evidence of the admissions of the defendant, testified to by some of the

draining the highway. The soil is clay, except to the plaintiff's witnesses, made after the prosecution was

south and east of the pond, where it is gravelly, and instituted. These admissions, if made and satisfacto

where there is some escape of water by percolation, rily proved, tended strongly to show that the defend

and possibly by a subterranean outlet. ant, Mills, did not believe the plaintiff guilty of the

Both farms seem to have been in private hands for larceny charged against him, even though there were

above fifty years. The road appears by the testimony circumstances, which to an ordinarily reasonable per

to be the La Plaisance Bay turnpike, which was, as son, tended to prove his guilt.

we are judicially informed by public statute, laid out The exception taken by the defendant, that upon

iu 1832, and built by the United States government, and the whole evidence the question of probable cause was

subsequently became subject to State authority, and a question of law and not of fact for the jury, was

is now in charge of the ordinary town authorities. clearly not well taken. The questions of fact, from

Just north of the road (which runs east and west on which a want of probable cause on the part of Mills

the section line between sections 32 and 29, in township might be found, were not admitted by Mills, nor were

*S. C., 20 N, W. Rep. 595.

5 S., of range 4 E.) the swale wideus on Dewey's laud happens that from the time of Bracton down atten. into a small pond. The pond op Boyd's land is never tion has been frequently called by the common-law dry, and before he built the dam contained usually courts to the fact that the whole subject of rights in from six to eight acres, of which a space of several water has been defined by the civil-law writers in terms acres became dry by means of the exclusion of the which substantially agree with the recoguized rules of water which came down from the lands above, which the common law, and that they agree very closely, not had no other escape. The dam was a solid structure necessarily because oue bas been borrowed from the twelve feet thick at the base and seven in the top, other, but rather because both are naturally drawu abut a hundred paces long, and higher than the highest from the general usages aud necessities of manpart of the culvert or highway. Its effect was to sub- kind. merge the road, aud also to throw the water all back All of the considerations which belong to the pres. over the highway and upon Dewey, where it had no ent case depend on the reciprocal action on both upescape but by evaporation.

per and lower proprietors of the maxim that every Boyd purchased the farm, which contains a little man, in the use of his own property, must avoid 12over vinety acres, in 1872, at which time there was no juring his neighbor's property as far as possible. And obstruction to the flowage. He first built the dam in while the cases cited on the hearing show that courts 1877, and it was removed so as to give room for the bave sometimes indulged in sweeping language, that water in 1878 by the highway commissioner. Being taken independently would lead to remarkable results, rebuilt, it was removed in 1879 by defendants under di- the facts on which the apparently conflicting rulings rection of the local authorities; Conklin himself being rest greatly narrow their substautial repugnauce. commissioner, and acting in pursuance of their in- There are, it must be admitted, decisions that cannot structious. The case, as it is now before us, presents possibly be harmonized; but their number and their no complications. The dam was built for the sole aud force do not equal their apparent importance. And express purpose of shutting out the water, which had there is no subject on which local usages have had so its only outlet through the swale and over Boyd's land, much weight in shaping the local commou law as the and this was its original and natural outlet. It was incidents of real estate. There are parts of the Union not artificial, but bad always existed since the country where the land laws have always differed from the was kuown; and the existence of a beaver dam makes common law of other States, while the law relating to it not unlikely that it was once a running stream. water has been laid down in a large part of the United Whether its waters are to any extent from spring or States in a uniform manner, without reference to their not, they include the whole surface drainage, and are aucient condition as French, Spanish or English colopot confined to passing storms. There is some testi. nies. The civil-law definitious, or what are supposed mony of occasional attempts by the lower owners to to be such, are quoted as often under the one class of obstruct the water, but no evidence of acquiescence, antecedents as under the other. and very little, if any, of submission by the highway The chief differences pointed out on the argument authorities to such obstructions.

as important in weighing decisions as furuishing preIf this had been an artificial drainage, the long ex- cedents, related to distinctions between living streams istence of the road, which could not be kept in repair in a natural flow and water of a different character in without drainage, and tbe undisputed fact that a regu. artificial escapes or in surface descents-to distinctious lar culvert has existed at least since 1845, and that no between urban and rural servitudes—and to the purother drainage was possible, would in our opinion put poses for which dams or other interruptions are made. plaintiff to very strong proof to overthrow the pre- It is not disputed that perennial flowing streams of livsumption of right. The court below gave plaintiff the ing water impose similar duties, and confer similar benefit of that analogy, and going very far in the en- rights on all riparian proprietors uuder all systems of deavor to avoid giving occasion for cavil, limited de- jurisprudence. It is not disputed that under what is fendant's justification to a substantially uninterrupted claimed to have been the civil law rule, the rural proprieenjoyment of the drainage for twenty years, without tor of lower lands was required to receive the water flow substantial objection to the public or highway au- of surface water from the upper lands coming in subthorities. But plaintiff insists that his right to inter- stantially its natural amount and condition. Beyond cept surface water cannot be cut off in that way, and this we cannot harmonize much of the contention of that except in case of living waters in a defined and counsel, and must dispose of the case as it appears to regular channel there is no such obstacle, or none us. A number of the most striking cases cited by without such an undisputed prescriptive right as would plaintiff's counsel in support of his appeal, as laying be equivalent to a grant.

down the broadest doctrine, and as relied upon in a On the argument the whole subject was discussed good share of his other citations, were cases where the with much ability. It is not necessary however to con- lands were in towns and cities, and the erections or sider any more of the legal vheories than such as have acts in litigation referred to the uses of that class of some application on the facts. The real question here was

property. And in relying on these it was claimed that whether one land-owner can at his pleasure erect such

there was no substantial foundation for any distincbarriers as will flood his neighbor's land with water tion between urban and rural property. that otherwise would escape over his own, in order to There is no question but that such a distinction is partially or wholly reclaim the bed of a pond which recognized in the civil-law authorities referred to on has always existed there, and get rid of the inflow. In

the argument, as well as iu' several of the cases cited. its natural condition neither the highway nor the up- The distinction is one of substance, and not arbitrary. per lands would be drowned. The effect of the dam is

As already suggested, the adjoining owners one muto cover portions of them with water that cannot

tual duties—the one to receive the natural flow, and cape. It was urged strenuously on plaintiff's behalf that

the other not to injuriously change its conditions. It there is a radical difference between the common and is obvious that the laying out of town streets and the the civil law iwon the subject of the relations of upper multiplication of buildings cannot avoid making seriand lour estates as to water easements and servitudes, ous changes in the surface of the ground and in the and that at common law the latter owes ao service to condition of surface water. Grades must usually be the forme: in regard to the flow oí gurface water. As established for streets and sidewalks and pavemeuts, we are not expocted officially to be experts in the and other surface changes are usual, in addition to the 0.5 aw, we shall not attempt to discuss that depart- walls of buildings wbich, with their embankments

, mint of jurisprudence as a separate subject. But it go must obstruct or change the drainage. It is almost


universally expected and provided that sewerage and authorities recognize valuable rights in water, and drainage shall be regulated by some municipal stand- some of them are spokeu of expressly as water-courses ard. There cannot be towus without changing the which are

entirely distinct from natural living face of the land materially. And where the same rule streams: Woolr. Wat. 3, 146, 147; Wright v. Williams, has been applied to towns as to the country, it has, in 1 Mees. & W.77; Raustron v. Taylor, 33 Law & Eq. some cases at least, been done expressly, because in 428: Broadbent v. Ramsbotham, 11 Exch. 602; 34 Law the circumstances of the record the particular land in & Eq. 553; Beeston v. Weate, id. 133; Ivimey v. Stocker, question had remained under rural conditions. If, as L. R., 1 Ch. App. 396; Watts v. Kelson, L. R., 6 Ch. seems to be true, some decisions iguore the distinc- App. 166; Nuttall v. Bracewell, L. R., 2 Exch. 1; Hcl. tion, they depart from the old rule, and cannot be ker v. Poritt, L. R., 8 Exch. 107; Taylor v. Corp. of St. maintained as harmonious with the general line of au- Helen's, 6 Ch. Div. 264; Magor v. Chadwick, 11 Ad. & thority, unless on special facts which do not justify E. 671; Chadwick v. Marsden, L. R., 2 Exch. 285. their broad dicta.

Upon such questions as are raised on this record The Massachusetts cases lay down so broadly the

there is, except in the Massachusetts doctrine and the right of the lower proprietor to cut off the water flow- cases which have followed it, very little conflict of ing down on him that whatever distinction may be opinion. Whatever may be the rights of adjoining found in their facts the court evidently meant to dis- proprietors as to the use and diversion of water, there regard them. The Wisconsin cases perhaps go about

is no right in any one, by raising artificial obstrucas far, and the Indiana rule is stated in similar terms. tions, to flood his veighbors' lands by stopping the esIt can hardly be said that there is any fixed New

cape of water that cannot escape otherwise. Some York rule which would apply to such a case as the cases have intimated that there might be larger rights present.

of obstruction where the particular drainage was not In the case of Barkley v. Wilcox, 86 N. Y. 140; S.C.,

necessary. But actual mischief done as a natural and 40 Am. Rep. 519, where the interference with the water

necessary consequence of such erections is almost uniwas by building and banking up a house near a street,

versally treated as an actionable nuisance. Laurence v. the facts did not call for any very general discussion, G. N. R. Co., 16 Q. B. 613; Rylands v. Fietcher, L. R.. and the court, while expressing a preference for the

3 H. L. 330; Tootle v. Clifton, 22 Ohio St. 247; S. C., views of the Massachusetts courts over the rule in

10 Am. Rep. 732; Wood Nuis., $ 386; Hurdmari v. N. Penusylvania and other States to the contrary, saw the E. R. Co., 3C. P. Div. 168; Whalley v. Lancashire & necessity of caution in adopting those views too uni

Y. Ry. Co., Eng. Ct. App., March, 1884. summarized versally, and left the door open to deal with cases like

in 30 Alb. L. J. 3; Broder v. Saillard, 2 Ch. Div. 692: this on their own footing.

Gillham v. Madison Co. Ry. Co., 49 Ill. 484; Gormley In Bowlsby v. Speer, 2 Vroom (N. J.) 351, the facts

v. Sanford, 52 id. 158; Ogburn v. Connor, 46 Cal. 346: and the decision were like those in Barkley v. Wilcox,

S. (., 13 Am. Rep. 213; Butler v. Peck, 16 Ohio St. 334; but can hardly be said to disturb the earlier case of

Nevins v. City of Peoria, 41 11. 502; Livingston v. Jc. Earl v. De Hart, 1 Beasl. 280, where the civil-law prin- Donald, 21 Iowa, 160; Hooper v. Wilkinson, 15 La. Ann. ciple was treated as in some cases furnishing a proper 497; McCormick v. Kansas City R., 70 Mo. 359, S. C.. rule for town property which was not so situated as to

35 Am. Rep. 431 ; Shane v. Kansas City Ry., 71 Mo. 237; require a different treatment.

S.C., 36 Am. Rep. 480. Mr. Washburn in his treatise on Easements, 355, in

As previously suggested, the rights of upper and dicates that“the Massachusetts rule is not sustained by

lower owners are not treated by the common-law authe weight of American authority, and that the rule

thorities as peculiar to either common or civil law, but known as the civil law rule has been more generally ac

as natural incidents to the land, which are and must cepted. He cites most of the authorities brought to

be analogous, as governed by universal jurisprudence, our attention on the argument, and they unquestiona

except where specially modified. The English courts bly sustain the existence of duties between the re

have never hesitated to cite the civilians on such spective land-owners to do no harm to each other

questions, and they have decided cases arising out of against the natural servitude. Much of the discussion

England without attempting to inquire into any local found in the cases referred to turns, not on the right

law as the basis of decision. Thus in the East Indian of the upper owner to have egress for his water, but

case of Rameshur Pershad Narain Singh v. Koonj upon the right of the lower owner to have the water

Behari Puttuk, 4 App. Cas. 12, the rights of the parcome down. In the present case Boyd does not seem

ties were dealt with just as if they had arisen in Engto desire this supply. But it is quite supposable that

land, although the uses of tanks and reservoirs in if this pond were not entirely on his premises it might

Iudia must in all probability have grown into very be of some importance to the neighboring land that it

ancient customs. In Smith v. Kenrick, 7 C. B. 515, the should not be diminished or destroyed.

Digest was cited as authority. It is not necessary on this record to determine how far defendants could themselves have shut off the sup

In Dickinson v. Grand Junction Canal Co., 9 Law & ply, because it is evidently not for their interest to do

Eq.513, and in Embrey v. Owen, 4 Eng. Rep. 466, it is But there is no lack of cases which hold that

stated that these various rights are not to be regarded rights may exist in a flow of water which is not a nat

as based on any presumption of grants, but as incident ural living stream. And while here, as in other cases,

to property jure nolurce. the rights of parties must depend somewhat on the

Bracton is cited in Wood Nuis., $ 386, as coinciding circumstauces and surroundings, the general principle with the civil-law rule. While he has been regarded underlying all the cases is that the upper and lower as drawing too much from the Roman law in some owners must respect any valuable rights which accrue other matters, no one has doubted that he laid down to either from the position of their lands. The par- the common law correctly on this. Britton lays it down row definition of water-courses as natural living very clearly that no one call drown liis neighbor's streams, which appears in a few cases in the United

land by erections on his own soil. “Appurteuauces," States, is not av ancient or universal definition. On fol. 140. The civil-law rule was recognized and adopted the contrary, water running in a natural or artificial in the customary as well as in the written law, in parts bed is very frequently, if not generally, so regarded.

of France, and in Canada and Scotland; and the RoBut names are of small importance, inasmuch as the man law in all these regious was modified by local only consideration that need be looked at is the char- usage, and in many things repudiated. In Basuage's acter and surroundings of the flowage. The following

Commentary on the Customs of Normandy it is not

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treated as a civil-law rule, but as a law of nature. 2 title, through the instrumentality of merely oral evi. Bas. 565.

dence, he cannot complain, if he is held to that uniIn Frechette v. La Compagnie Manufacturiere de St. form measure of proof, which will secure adequate pro. Hyacinthe, L. R., 9 App. Cas. 170, tbe Lower Canada tection against the effects of fraud and perjury, and Code is quoted, which seems to be a substantial if uot especially so if he choose as the custodian of the title a literal transcript of section 640 of the French Civil his wife or child to whom he occupies a relation of Code, and regulates the rights of both classes of own- especial duty and obligation, and in whose favor preers, forbidding the lower owner from hindering the es sumptions of peculiar force m ust vecessarily arise. In cape of water by dikes, and forbidding the upper owner Roberts' Appeal, 4 Norris, 87, which was affirmed upon from aggravating the flow to the injury of the lower the opinion of the court below, Thayer, J., in speakestate. In discussing this clause, a learned writer on ing of trusts which arise from the payment of pur the law of property, Charles Comte, speaks of the chase-money, said: “Th, presumption of such a reterm “servitude,” which strictly denotes a diminution sulting trust is always rebutted where, to use the lanof rights, as an unfortunate and improper phrase to guage of the books, 'the purchase may be fairly apply to these reciprocal duties. “It is simply a deemed to be made for another from motives of natumeans of preventing usurpation, and of securing to ral love and affection.' Thus a purchase in the name each that which belongs to him." While Erskine, in of a wife or a child, is uniformly held by the unaided his “Principles of the Law of Scotland,” uses the force of the relationship alone to rebut the presumpterm “servitude" as including the rights in question, tion, unless there be clear evidence to show the donea he speaks of them as natural, as contradistinguished was intended to be a mere trustee." In a long line of from legal servitudes. Book 2, tit. 9. Domat refers cases it has been held that to establish a resulting to them in the same way, dividing servitudes into trust the evidence must be clear, explicit and unequif. those which are natural, and those which do not rest ocal; the rule is so well established that a citation of on natural right. Book 1, tit. 12, $ 5. And this is fur- the authorities in extensio seems unnecessary. We ther illustrated by his collection of excerpts from the may refer however to McGinity v. McGinity, 13 P. F. Roman law. 4 Dom. 423

S. 38; Nixon's Appeal, id. 279; Lingenfelter v. Richey, There seems to be no reason for attempting to draw | 12 id, 123; Kistler's Appeal, 23 id. 393; Fricke v. Ma. distinctions between the civil and the common law on gee, 10 Week. Notes, 50; Buchanan v. Streeper, 11 id. this subject. The authorities recognize the principles 434. Whether therefore a trust is deducible in ang as in no sense conventional, or derived from any given case from the nature of the transaction as a matschool of jurisprudence, but as resting on the immu- ter of actual intent, is susceptible of oral proof; but nity of one man's property from injury by another in he who alleges the trust takes the burden of establishviolation of natural justice, and in disregard of the re- ing it, and all the essential requisites of that trust relative conditions arising from its position. Each may must be shown by clear, explicit and unequivocal do in using his own what is consistent with the fair in

proof. Earnest's Appeal. Opinion by Clark, J. terest of the other.

[Decided May 26, 1884.] The escape of water in the present case is natural and

COPYRIGHT LECTURE PUBLICATION is necessary, and there was no right to prevent it by such a dam as defendants broke through. The charge

TION.-The publication by one who had attended lec. given was at least as liberal as plaintiff had a right to

tures delivered orally by an eminent surgeon, of a ask. The judgment should be affirmed.

summary or epitome thereof, under the name of the

lecturer, as author of such epitome, will be enjoined. Champlin and Sherwood, JJ., concurred.

The publication of a book containing the substance of Cooley, C. J., did not sit.

such lectures however will not be restrained. Viller's [See 30 N. Y. 519; 13 S. C. 97.]

Appeal. Opinion per Curiam.

[Decided April 21, 1884.]

ers of land bordering upon the bed of a turnpike bare

a right to pass to and from the land on to the road, and
-EVIDENCE MUST BE CLEAR. - When property is paid

to construct proper bridges or causeways for that purfor by the husband and title taken in the wife's name,

pose. (2) Where a bridge or causeway across the gutter the law presumes that a gift was intended. The pre

at the side of the road was alleged by the turnpike comsumption of gift, it is true, is but a presumption of

pany to constitute an obstruction to the draivage of the fict, which determines the burden of proof; yet as the

road, it was proper in an action brought by the turnpike effect of the rebutting evidence may be to fasten a

company against the land owner to submit the ques. trust upon a legal title, it must for that reason con

tion to the jury whether there was sufficient space left form to the measure stated; every element essential to

under the bridge or causeway for the water to flow, iu the existence or creation of a resulting trust in any graphic views of the locality are admissible in evidence

view of all the circumstances of the case. (3) Photogiven case must be clearly shown. This rule grows out of the policy pursued under the statute of frauds,

in such a case, and the fact that they did not exhibit and its enforcement is essential to the secure enjoy every part of the ground is not cause for their exclument of real property. We cannot distinguish be

sion. Chestnut Hill, etc., Turnpike Co. v. Piper. Opiutween the measure of proof required to rebut the ordi

ion per Curiam. nary presumptions arising from the face of the deed [Decided Jan. 21, 1884. ] to Elizabeth Hill, and the presumption of gift, arising MARRIAGE-WIFE'S SEPARATE ESTATE-HUSBAND'S from the relation of the parties, when the purpose is CREDITORS. —-(1) The act of 1848 provides in very clear to set up a resulting trust against the legal title. Re..

terms that “property of whatever kind or nature, sulting trusts, although reserved out of the statute of which shall accrue to a married woman during covertfrauds, are in conflict with the sound principles upon ure," shall be “owned and enjoyed by her as her own which that statute is based (Stronpflee v. Roberts, 6 separate property," and "shall not be subject to lery Harris, 298); and when one voluntarily places his and execution for the debts and liabilities of her busrights to real property in such a plight that he can only band.” It is her“ property" only however that the establish them by an attack upon the written legal Legislature intended to protect; her earuings, ber el

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