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But the presumption may be rebutted by proof of an oral agreement to reserve them after the expiration of his term.1

X. Railroad Rolling Stock.- There is considerable conflict of opinion, both among courts and among text-book writers, on the question whether railroad rolling-stock should be considered personal property or fixtures. However, the tendency seems to be in the direction of regarding such property fixtures. 2

XI. Remedies — Trover will lie in favor of a tenant for fixtures removable by him, if he is prevented by the owner of the land from removing his fixtures within the time the law allows for removal.3 But if the fixtures are allowed to remain after the ex

in possession. Dubois v. Kelley, 10 Barb. Gray, 566; James, etc., 7. Milwaukee R. (N. Y.) 496.

Co., 6 Wal. (U. S.) 752; Pennock v. Coe, 1. McCracken v. Hall, 7 Ind. 30; Hal. 23 How. (U. S.) 117. leen v. Runder, 3 Tyrw. 959; Taylor's In Illinois, it is well settled that rollingLand. & Ten. $ 552.

stock of a railway is part of the realty, 2. Farmers', etc., Trust Co. v. St. Jo., and not subject to execution as chatiels. etc., R. Co., 3 Dill. (C. C.) 417. In this Titus v. Ginheimer, 27 Ill. 462; Titus v. case Miller, J., says: “In my opinion, Mabee, 25 Ill. 232; Palmer v. Forbes, 23 rolling-stock and other property, strictly III. 237. See also State v. Northern Cent. and properly appurtenant to the road, is R. Co., 18 Md. 193. part of the road, and covered by the mort- In Georgia, it was held that the rail. gage in question, which in terms em- road of an insolvent company was not braces rolling-stock. The cases are con- subject to executions at the suits of sepaflicting as to the nature of rolling-stock, rate creditors, but should be sold as an but considering the peculiar character of entirety, and the proceeds divided. a railroad, the true principle is the one Macon & Western R. Co. v. Parker, 9 above stated.” Judge Dillon, in review. Ga. 377. ing the work of Mr. Ewell on Fixtures, In New York, railway rolling stock is says: “ The importance of a recent work personal property. Hoyle v. Plattsburgh, on the subject is well exemplified by the etc., R. Co., 54 N. Y. 314; Randall v. cases upon the question whether railway Elwell, 52 N. Y. 521; Stevens v. Buffalo, rolling-stock is part of the realty. This etc., R. Co., 31 Barb. (N. Y.) 590; point cannot yet be considered as settled, Beardsley V. Ontario Bank, 31 Barb. in view of the conflict of decisions. We (N. Y.) 619. Compare Farmers' Loan & notice that the author, after citing and Trust Co. 7'. Hendrickson, 25 Barb. 484. referring to the cases, presses the opin. Also in New Jersey: Williamson 2. N. J. ion that the better view is, that rolling- Southern R. Co., 29 N. J. E. 311; Staie stock is personalty. This is doubtful; v. Somerville, etc., R. Co., 28 N. J. L. 21. and we venture to think that finally the And in New Hampshire: Boston, etc., R. views of Mr. Justice Miller, as expressed Co. v. Gilmore, 37 N. H. 410. And in in the Farmers' Loan & Trust Co. 7. St. Ohio: Coe v. Columbus, etc., R. Co., 10 Jo., etc., R. Co., 3 Dill. (C. C. R.) 412,

Ohio St. 372. will, where the matter is not controlled In Wisconsin, railway rolling stock is by statutable provision, be accepted as declared by statute to be fixtures. Rev. the sound doctrine on this subject.” 4 Stat. 511, $ 34. See also Chicago, etc., Cent. Law Jour. 22.

R. Co. v. Borough of Ft. Howard, 21 Where judgment creditors levied upon freight cars, wheels, and firewood of a In Arkansas, Illinois, Missouri, Ne. railroad company, it was held that all the braska, Texas and West Virginia railrolling-stock of the road passed by a way rolling stock is declared by the conmortgage upon the road, lands, right of stitution of each State to be personal way, franchises, engines, cars, tools, ma- property. Wood on Ry. 1625. chinery, etc., and that the mortgage cov- 3. Watts v. Lehman, 107 Pa. St. 106; ered after-acquired property, and that the Hilborne v. Brown, 12 Me. 162; Russell execution was not a valid lien. Phillips v. Richard, 10 Me. 429; Wansbrough v. v. Winslow, etc., 18 B. Mon. (Ken.) 431. Maton, 4 A. & E. 884. In the case of See also Pierce v. Emery, 32 N. H. 484; Hilborne 7. Brown, the plaintiff placed a Milwaukee, etc., R. v. Southern, 2 Wal. blacksmith shop upon another's land, 609, and note; Howev. Freeman, 14 under a parol license, paying a ground

Wis. 45.

piration of the lease, the tenant cannot maintain the action. 1 This action will also lie in favor of the owner of the land for fixtures unlawfully removed by the party in possession. When buildings are unlawfully removed from the freehold, the owner of the land may bring the action of replevin for them.3 Ejectment will lie to enforce an agreement for the common use of fixtures erected at the joint expense of tenants in common. A mortgagee may restrain by injunction a mortgagor or his grantee from removing fixtures that are permanently annexed to the freehold.5

FLANGE.-See note 6.

rent for the land, and reserving the right Morrison v. Berry, 42 Mich. 389; s. C., to remove the shop at pleasure. The 36 Amer. Rep. 446. owner of the land conveyed it to the de- 3 Central Branch R. Co. v. Fritz, fendants without reserving the building, 20 Kan. 430; Salter v. Sample, 71. III. and it was held that after demand for it, 430; Ogden v. Stock, 34 Ill. 522; Mills v. and refusal by the owners of the land to Redick, i Neb. 437; Huebschmann v. give it up, the action of trover would lie. McHenry, 29 Wis. 655. Where the buildHilborne Brown, 12 Me. 162.

ing has been permanently annexed to the However, it has been held that tenant's freehold, it is a question whether it can fixtures, although removable by the ten- be replevied from the person who has ant during his term, are parcel of the wrongfully severed_it, or not. Cent. freehold, and that trover will not lie for Branch R. Co. v. Fritz, 20 Kan. 430. them. Mackintosh 7'. Trotter, 3 M. & See also Salter v. Sample, 71 Ill. 430; W. 184. See also Minshall v. Lloyd, 2 Mills v. Redick, 1 Neb. 437; Hartwell v. M. & W. 450.

Kelly, 117 Mass. 235. Where fixtures are erected by one per- Replevin will also he for machinery son on the land of another under an im- that has been unlawfully severed from plied license, the action of trover will lie the freehold. Sands v. Pfeiffer, 10 Cal. against a subsequent purchaser of the 259; Gardner v. Finley, 19 Barb. (N. Y.) land for their conversion, when the fact 317; Cresson v. Stout, 17 Johns. (N. Y.) of the license is known. Wilgus v. Get 116; Farrant v. Thompson, 5 B. & Ald. tings, 21 Iowa, 177; Noble v. Sylvester, 42 826; Balliettv. Humphreys, 78 Ind. Vt. 146. But the law is otherwise in case 388. the purchaser had no knowledge of the Buildings erected under license upon license. Powers v. Dennison, 30 Vt. another's land may be replevied after re752.

fusal to give them up on the part of the 1. White v. Arndt, 1 Whart. (Pa.) 91; owner of the land. Waters 2. Reuber, Darrah v. Baird, 101 Pa. St. 265; Over- 16 Neb. 99; Weathersby v. Sleeper, 42 ton v. Williston, 31 Pa. St. 155; Davis v. Buffum, 51 Me. 160; Preston v. Briggs, 4. Hill v. Hill. 43 Pa. St. 521. 16 Vt. 124; Lee v. Risdon, 2 Eng. C. L. 5. Dudley 2'. Hurst, 67 Md. 44; s. C., 69.

8 Atl. Rep. 901,

See also Coleman v. 2. Union Bank v. Emerson, 15 Mass. Stearns Mfg. Co., 38 Mich. 30. 159; McNalley v. Connolly, 70 Cal. 3; Authorities. · Boone Real Estate; Westgate v. Nixon, 128 Mass. 304. Washburn Real Property; Tyler on the

Trover will not lie against the owner Law of Fixtures; Gibbons' Law of Fixof land for fences built upon his premises tures; Taylor's Land. & Ten.; Jones on by another without his consent, and Mortgages; Smith's Leading Cases; which were removed by him. Wentz v. Central Law Journal; Tiedman Real Fincher, 12 Ired. (N. Car.) 297. See also Property; Sugden Vendors; Bouvier's Doscher v. Blackiston, 7 Oreg. 143. Law Dic.

And where fixtures were placed upon 6. An omnibus wheel, with a disk cathe land of a married woman at the re- pable of being lowered against the wheel quest of her husband, the persons placing into a groove in the rail of a tramway, the fixtures cannot maintain the action and drawn up when running on the paveof trover for them on the refusal of the ment, is a “flange wheel” within the wife to allow their removal, after the meaning of a statute prohibiting unlicontract had been rescinded for fraud. censed persons from using a tramway 8 C. of L.-5

65

Miss. 73.

FLAT.-A level place over which the water stands or flows; the land between high and low water mark.1

FLEE_See FUGITIVE.

FLOATING DEBT.—That mass of lawful and valid claims against a corporation for the payment of which there is no money in the corporate treasury specifically designed, nor any taxation or other means of providing money to pay particularly provided. 3 with vehicles having flange-wheels. Cot- tection or punishment for some public tam 7. Guest, 6 Q. B. D. 70.

offence." " It is implied also in the defi1. Church v. Meeker, 34 Conn. 421; nition above given, that mere departure Saltonstall v'. Proprietors of Long Wharf, by the defendant from the liinits of the 7 Cush. (Mass.) 195; Stover v. Freeman, district of Kansas, irrespective of the mo6 Mass. 435; Ball v. Slack, 2 Whar. (Pa.) tives and purposes of such departure, is 539; Jones v. Janney, 8 W. & S. (Pa.) not a fleeing from justice. An offender 443.

may flee from justice, within the meaning In construing a statute which gave to of the statute under consideration, though any one who first made “a weir for catch- he never left the limits of the district; as ing fish on any flat within any river, cove, for example, by secretly concealing him. or harbor” a right of uninterrupted en- self, or by not being usually and publicly joyment thereof, the same court said: known as being within it." United States - The word itself is obviously one which v. O'Brian, 3 Dill. (C. C.) 381; s. c., 19 may be used in different senses, but in Int. Rev. Rec. 18; United States v. White, this statute it is confined to some place 5 Cranch (C. C.), 38; State v. Washburn, or places within a river, cove, creek or 18 Mo. 240. It need not be a fleeing harbor where fish may be taken. It im- from prosecution begun; it is not necesplies, therefore, that it must be a place sary that process should have issued. more or less under water. It is fre- United States v. Smith, 4 Day (Conn.), quently used by nautical men to distin- 121; United States v. White, 5 Cranch guish it from the channel of a river or (C. C.), 38. harbor; and in this sense, while it includes • One who shall flee" within the meanthe idea of being under water, it is used ing of the provision of the Constitution as descriptive of a place not navigable of the United States for the delivering with safety by ordinary vessels, on ac- up of fugitives from justice does not incount of the shallowness of the water. clude one who was never in the country And one of the definitions given of it is 'a from which he is said to have fled. Jones shallow or shoal water.'” Accordingly, v. Leonard, 50 lowa, 106; s. C., 32 Am. a structure beginning at a point where Rep. 116. the water is six feet deep and extending The terms of this provision “were ininto water eighteen feet deep is not tended to embrace not only a case where within the protection of the statute. a party after committing a crime actually Stannard v. Hubbard, 34 Conn. 370. flees, in the literal sense of that term,

2. Flee from justice. (See also Crim- from the State where such crime was INAL PROCEDURE, Vol. IV., p.785, n. 1.)- committed, but also a case where a citiThis phrase, used in a statutory provision zen of one State, who, within the territothat the limitation of a criminal action rial limits of another State, commits a shall not run against the State in favor of crime, and then simply returns to his one “fleeing from justice," “means to own home.”

Ex parte Swearingen, 13 leave one's home or residence or known S. Car. 74. place of abode, with intent to avoid de- 3. People v. Wood, 71 N. Y. 374.

66

FLOODS.-(See also DAMS; DRAINS AND SEWERS; RAILROADS; RIPARIAN RIGHTS; SURFACE-WATER; WATERS AND WATERCOURSES.) 1. Definition, 67.

IV. Duty of Owners of Dams, 69. II. Liability for Flood by One who V. Responsibility of Railroads for

Collects Water on his Proper- Damages Caused by Floods, ty, 67.

[ets, 68.

70. III. Streams Subject to Great Fresh

1. Definition. ---A great flow of water; a body of moving water; especially, a body of water rising, swelling, and overflowing land not usually thus covered. 1

II. Liability for Flood by One who Collects Water on his Property.-One who collects water on his land must keep it in at his peril, and is prima facie liable for all damage which is the natural consequence of its cscape.2 1. Webster's Dict.

keep it safely there, is not liable for damGreat floods, like other inevitable ca- age effecied by an escape of the water, if lamities, are to be borne without com- the escape be caused by the act of God, plains.” Per Black. J., in McCoy v. or vis major; e.g., by an extraordinary Danley, 20 Pa. St. 89.

rainfall, which could not reasonably have 2. The general rule in regard to water been anticipated, although if it had been is the same as that in regard to any other anticipated the effect might have been thing dangerous or liable to do mischief prevented. Nichols v. Mauland, 2 L. R. if it escape, viz. :

Exch. Div. 1; 46 L.J. Exch. Div. 174; 33 One who, for his own purposes, brings' L. T. N. S. 265. upon his land, and collects and keeps The plaintiffs hired of the defendant the there, anything likely to do mischief if it ground-floor of a warehouse, the upescape, must keep it in at his peril, and per part of which was occupied by the if he does not do so is prima facie defendant himself. The water from the answerable for all the damage which is roof was collected by gutters into a box, the natural consequence of its escape. from which it was discharged by a pipe He can excuse hiniselt by showing that into the drains. A hole was made in the the escape was owing to the plaintiff's box by a ral, through which the water default; or perhaps that the escape was entered the warehouse and wetted the the consequence of vis major, or the act plaintiffs' goods. The defendant had of God. Per Blackburn, J., in Fletcher v. used reasonable care in examining and Ryland, L. R. 2 Exch. Div. 279; 35 L. J. seeing to the security of the gutters and the Exch, 154; L. R. 3 Eng & I. App. 330. box. In an action by the plaintiffs against Lord Cranworth says: “If a person

the defendant for the damages caused, brings and accumulates on his land any- helii, that the defendant was not liable, thing which, if it should escape. may either on the ground of an implied concause damage to his neighbor, he does so tract on the ground that he had at his peril. If it does escape and cause brought the water to the place from which damage, he is responsible however care- it entered the warehouse. Carstairs v. ful he may have been, and what. Taylor, L. R. 6 Exch. 217; 40 L. J. Rep. ever precautions he may have taken to

Exch. 129. prevent the damage; and the doc- But one who, for his own purposes, so trine is founded in good sense. For manages his land as to collect there in when one person, in managing his own abnormal qu ies anything likely to do affairs, causes, however indirectly, dam- mischief if it escape is prima facie anage to another, it is obviously only just swerable for the damage consequent that he should be the party to suffer. He upon its escape. The defendants' mines is bound sic uti tuo ut non lædit alie- adjoined and communicated with the

L. R. 3 Eng. & Ir. Ap. 330; Ma- plaintiffs', and on the surface of the de. dras Railway Co. Zemindar of fendants' land were certain hollows and Carvetinaganum, 20 W. R. 865; 30 L. T. openings. partly caused by water and

partly made to facilitate defendants' But one who stores water on his workings. Across the surface of their own land, and uses all reasonable care to land there ran a watercourse. In Novem

or

num.

V.

N. S. 770.

extreme

causes.

at

course

III. Streams Subject to Great Freshets.-If a stream is subject to great freshets they must be guarded against, and the measure of ber, 1871, the banks of the watercourse, served the directions of an act of Parlia(which were sufficient for all ordinary ment in laying their pipes) proved insufoccasions) burst in consequence of excep- ficient against a winter of tionally heavy rains, and the water es. coldness, such as no man could have caped into and accumulated in the hol- foreseen, it is not sufficient to render lows and openings, where the rains had them liable for negligence. Blyth v. already caused an unusual amount of Company of Proprietors of the Birwater to collect, and thence by fissures and mingham Water Works, 11 Exch. 781; cracks water passed into the defendant's Whitehouse v. Birmingham Canal Co., and so into the plaintiff's mines. If the 27 L. J. Exch. 25. land had been in its natural condition Extraordinary Frost - Precautions the water would have spread itself over against Frost. - Although a water comthe surface, and have been innocuous. pany is not liable for the unforeseen The defendants were not guilty of any result of an extraordinary frost, yet they actual negligence in the management of are bound to take reasonable care to protheir mines. In an action by the plain- vide against the consequences of ordinary tiff to recover the damage he had sus- frosts. Steggles v. New River Co., II tained, held, that the defendants were W. R. 234; 13 W. R. 413. liable, although they were not guilty of Breakage of Drain.-A company any personal negligence, and although charged with the duty of repairing a the accident arose from exceptional drain held responsible for injury arising

Smith v. Fletcher, 7 L. R. from the banks of the drain giving way Exch. 305, 41 L. J. Exch. 193.

a period of extraordinary rainfall, In King v. Truffin, 1 B. & Ad. 874, which swelled the drain in consequence where the defendants had erected fen. of the outlet thereof not being sufficiently ders to protect their land in time of food, widened by other parties, whose duty it Lord Tenterden, C.).. said:

was to keep the outlet of a certain width. Damage from Wind and Rain. — “It has Harrison v. Great Northern Railway been long established that the ordinary Co., 10 Jur. 992; 3 H. & C. 231.

of water cannot be lawfully The legal maxim, Causa propinqua non, changed or obstructed for the benefit of remota, spectatur, governs. one class of persons to the injury of an- In China v. Southwick, 12 Me. 238, an other. Unless, therefore, a sound distinc- instruction to the jury that if the damage tion can be made between the ordinary was occasioned by great rains or by the course of water flowing in a bounded violence of the wind, the defendants were channel at all usual seasons and the ex- not liable if the jury were satisfied that traordinary course which its superabun- the head of water raised by defendant's dant quantity has been accustomed to dam was not high enough to do damage take at particular seasons, the creation to defendant's bridge, was sustained, and continuance of these fenders cannot Floods of Rivers. - The legislative be justified.” Angell on Watercourses, grantees of a right to improve the naviga$ 347

tion of a river by erecting dams, locks, etc., Riparian Owner's Liability. -A riparian if chargeable with no want of attention owner is entitled to secure the water in as to the probable effect of the erection of the channel of a stream in its natural their works, are not answerable for consestate up to his neighbor's line; and is not quences it was impossible to foresee and answerable for damage done by high prevent. For an act of Providence alone water, however it may have been in- they are not answerable. To fix them curred by obstructions below. He is with liability for mischief done by a flood not liable for loss occasioned by un- or storm, there must be a concurrence of usual and extraordinary rains or winds. negligence with the act of Providence. China v. Southwick, 12 Me. 238: Mo- Lehigh Bridge Co. v. Lehigh Coal and nongahela Nav. Co. v. Coon, 6 Bin- Navigation Co.. 4 Rawle (Pa.), 9; Bell v. ney (Pa.), 383; Smith v. Agawam Canal McClintock, 9 Watts (Pa.), 119. When, Co., 2 Allen (Mass.). 355; Bristol Hy. however, injury arises from causes which draulic Co. v. Boyd, 67 Ind. 236; Curtis might have been foreseen and avoided. 7. Eastern R. Co., 98 Mass. 428; Boyn- as in cases of ordinary periodical freshton v. Gilman, 53 Ví. 17; Curtis v. Kid- ets, it is but right that he whose superder, 24 N. H. 364.

structure is the immediate cause of the Floods from Pipe.-When the precau- mischief should bear the loss. Bell v. tions of a water company (which had ob- McClintock, 9 Waits (Pa.), 119.

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