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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."

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. (N. Y.) 496.

1. McCracken v. Hall, 7 Ind. 30; Halleen v. Runder, 3 Tyrw. 959: Taylor's Land. & Ten. § 552.

2. Farmers', etc., Trust Co. v. St. Jo., etc., R. Co,, 3 Dill. (C. C.) 417. In this case Miller, J., says: In my opinion, rolling-stock and other property, strictly and properly appurtenant to the road, is part of the road, and covered by the mortgage in question, which in terms embraces rolling-stock. The cases are conflicting as to the nature of rolling-stock, but considering the peculiar character of a railroad, the true principle is the one above stated." Judge Dillon, in reviewing the work of Mr. Ewell on Fixtures, says: "The importance of a recent work on the subject is well exemplified by the cases upon the question whether railway rolling-stock is part of the realty. This point cannot yet be considered as settled, in view of the conflict of decisions. We notice that the author, after citing and referring to the cases, expresses the opinion that the better view is, that rollingstock is personalty. This is doubtful; and we venture to think that finally the views of Mr. Justice Miller, as expressed in the Farmers' Loan & Trust Co. v. St. Jo., etc., R. Co., 3 Dill. (C. C. R.) 412, will, where the matter is not controlled by statutable provision, be accepted as the sound doctrine on this subject." 4 Cent. Law Jour. 22.

Where judgment creditors levied upon freight cars, wheels, and firewood of a railroad company, it was held that all the rolling-stock of the road passed by a mortgage upon the road, lands, right of way, franchises, engines, cars, tools, machinery, etc., and that the mortgage covered after-acquired property, and that the execution was not a valid lien. Phillips v. Winslow, etc., 18 B. Mon. (Ken.) 431. See also Pierce v. Emery, 32 N. H. 484; Milwaukee, etc., R. v. Southern, 2 Wal. 609, and note; Howe. v. Freeman, 14

Gray, 566; James, etc., v. Milwaukee R. Co., 6 Wal. (U. S.) 752; Pennock v. Coe, 23 How. (U. S.) 117.

In Illinois, it is well settled that rollingstock of a railway is part of the realty, and not subject to execution as chattels. Titus v. Ginheimer, 27 Ill. 462; Titus v. Mabee, 25 Ill. 232; Palmer v. Forbes, 23 Ill. 237. See also State v. Northern Cent. R. Co., 18 Md. 193.

In Georgia, it was held that the railroad of an insolvent company was not subject to executions at the suits of separate creditors, but should be sold as an entirety, and the proceeds divided. Macon & Western R. Co. v. Parker, 9 Ga. 377.

In New York, railway rolling-stock is personal property. Hoyle v. Plattsburgh, etc., R. Co., 54 N. Y. 314; Randall v. Elwell, 52 N. Y. 521; Stevens v. Buffalo, etc., R. Co., 31 Barb. (N. Y.) 590; Beardsley v. Ontario Bank, 31 Barb. (N. Y.) 619. Compare Farmers' Loan & Trust Co. v. Hendrickson, 25 Barb. 484. Also in New Jersey: Williamson v. N. J. Southern R. Co., 29 N. J. E. 311; State v. Somerville, etc., R. Co., 28 N. J. L. 21. And in New Hampshire: Boston, etc., R. Co. v. Gilmore, 37 N. H. 410. And in Ohio: Coe v. Columbus, etc., R. Co., IO Ohio St. 372.

In Wisconsin, railway rolling-stock is declared by statute to be fixtures. Rev. Stat. 511, 34. See also Chicago, etc., R. Co. v. Borough of Ft. Howard, 21 Wis. 45.

In Arkansas, Illinois, Missouri, Nebraska, Texas and West Virginia railway rolling-stock is declared by the constitution of each State to be personal property. Wood on Ry. 1625.

3. Watts v. Lehman, 107 Pa. St. 106; Hilborne 7. Brown, 12 Me. 162; Russell v. Richard, 10 Me. 429; Wansbrough v. Maton, 4 A. & E. 884. In the case of Hilborne. Brown, the plaintiff placed a blacksmith shop upon another's land, under a parol license, paying a ground

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.4 A mortgagee may restrain by injunction a mortgagor or his grantee from removing fixtures that are permanently annexed to the free


FLANGE.-See note 6.

rent for the land, and reserving the right to remove the shop at pleasure. The owner of the land conveyed it to the defendants without reserving the building, and it was held that after demand for it, and refusal by the owners of the land to give it up, the action of trover would lie. Hilborne Brown, 12 Me. 162.

However, it has been held that tenant's fixtures, although removable by the tenant during his term, are parcel of the freehold, and that trover will not lie for them. Mackintosh 7. Trotter, 3 M. & W. 184. See also Minshall v. Lloyd, 2

M. & W. 450.

Where fixtures are erected by one person on the land of another under an implied license, the action of trover will lie against a subsequent purchaser of the land for their conversion, when the fact of the license is known. Wilgus v. Get tings, 21 Iowa, 177; Noble v. Sylvester, 42 Vt. 146. But the law is otherwise in case the purchaser had no knowledge of the license. Powers v. Dennison, 30 Vt. 752.

1. White v. Arndt, 1 Whart. (Pa.) 91; Darrah v. Baird, 101 Pa. St. 265; Overton v. Williston, 31 Pa. St. 155; Davis v. Buffum, 51 Me. 160; Preston v. Briggs, 16 Vt. 124; Lee v. Risdon, 2 Eng. C. L. 69.

2. Union Bank v. Emerson, 15 Mass. 159; McNalley v. Connolly, 70 Cal. 3; Westgate v. Nixon, 128 Mass 304.

Trover will not lie against the owner of land for fences built upon his premises by another without his consent, and which were removed by him. Wentz v. Fincher, 12 Ired. (N. Car.) 297. See also Doscher v. Blackiston, 7 Oreg. 143.

And where fixtures were placed upon the land of a married woman at the request of her husband, the persons placing the fixtures cannot maintain the action of trover for them on the refusal of the wife to allow their removal, after the contract had been rescinded for fraud.

8 C. of L.-5

Morrison v. Berry, 42 Mich. 389; s. c., 36 Amer. Rep. 446.

3 Central Branch R. Co. v. Fritz, 20 Kan. 430; Salter v. Sample, 71 Ill. 430; Ogden v. Stock, 34 Ill. 522; Mills v. Redick, I Neb. 437; Huebschmann v. McHenry, 29 Wis. 655. Where the building has been permanently annexed to the freehold, it is a question whether it can be replevied from the person who has wrongfully severed it, or not. Cent. Branch R. Co. v. Fritz, 20 Kan. 430. See also Salter v. Sample, 71 Ill. 430; Mills v. Redick, 1 Neb. 437; Hartwell v. Kelly, 117 Mass. 235.

Replevin will also he for machinery that has been unlawfully severed from the freehold. Sands v. Pfeiffer, 10 Cal. 259; Gardner v. Finley, 19 Barb. (N. Y.) 317; Cresson v. Stout, 17 Johns. (N. Y.) 116; Farrant v. Thompson, 5 B. & Ald. 826; Balliett v. Humphreys, 78 Ind. 388.

Buildings erected under license upon another's land may be replevied after refusal to give them up on the part of the owner of the land. Waters v. Reuber, 16 Neb. 99; Weathersby v. Sleeper, 42 Miss. 73.

4. Hill v. Hill. 43 Pa. St. 521.

5. Dudley . Hurst, 67 Md. 44; s. c., 8 Atl. Rep. 901. See also Coleman v. Stearns Mfg. Co., 38 Mich. 30.

Authorities. Boone Real Estate; Washburn Real Property; Tyler on the Law of Fixtures; Gibbons' Law of Fixtures; Taylor's Land. & Ten.; Jones on Mortgages; Smith's Leading Cases; Central Law Journal; Tiedman Real Property; Sugden Vendors; Bouvier's Law Dic.

6. An omnibus wheel, with a disk capable of being lowered against the wheel into a groove in the rail of a tramway, and drawn up when running on the pavement, is a "flange wheel" within the meaning of a statute prohibiting unlicensed persons from using a tramway 65

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


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

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In construing a statute which gave to any one who first made "a weir for catching fish on any flat within any river, cove, or harbor" a right of uninterrupted enjoyment thereof, the same court said: The word itself is obviously one which may be used in different senses, but in this statute it is confined to some place or places within a river, cove, creek or harbor where fish may be taken. It implies, therefore, that it must be a place more or less under water. It is frequently used by nautical men to distinguish it from the channel of a river or harbor; and in this sense, while it includes the idea of being under water, it is used as descriptive of a place not navigable with safety by ordinary vessels, on account of the shallowness of the water. And one of the definitions given of it is 'a shallow or shoal water.' Accordingly, a structure beginning at a point where the water is six feet deep and extending into water eighteen feet deep is not within the protection of the statute. Stannard v. Hubbard, 34 Conn. 370.

2. Flee from justice. (See also CRIMINAL PROCEDURE, Vol. IV., p. 785, n. 1.)— This phrase, used in a statutory provision that the limitation of a criminal action shall not run against the State in favor of one fleeing from justice," "means to leave one's home or residence or known place of abode, with intent to avoid de


tection or punishment for some public offence." It is implied also in the definition above given, that mere departure by the defendant from the limits of the district of Kansas, irrespective of the motives and purposes of such departure, is not a fleeing from justice. An offender may flee from justice, within the meaning of the statute under consideration, though he never left the limits of the district; as for example, by secretly concealing himself, or by not being usually and publicly known as being within it.' United States v. O'Brian, 3 Dill. (C. C.) 381; s. c., 19 Int. Rev. Rec. 18; United States v. White, 5 Cranch (C. C.), 38; State v. Washburn, 48 Mo. 240. It need not be a fleeing from prosecution begun; it is not necessary that process should have issued. United States v. Smith, 4 Day (Conn.), 121; United States v. White, 5 Cranch (C. C.), 38.

"One who shall flee" within the meaning of the provision of the Constitution of the United States for the delivering up of fugitives from justice does not include one who was never in the country from which he is said to have fled. Jones v. Leonard, 50 Iowa, 106; s. c., 32 Am. Rep. 116.

The terms of this provision 66 were intended to embrace not only a case where a party after committing a crime actually flees, in the literal sense of that term, from the State where such crime was committed, but also a case where a citizen of one State, who, within the territorial limits of another State, commits a crime, and then simply returns to his own home." Ex parte Swearingen, 13 S. Car. 74.

3. People v. Wood, 71 N. Y. 374.


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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 escape.'

1. Webster's Dict.

Great floods, like other inevitable calamities, are to be borne without complaint." Per Black. J., in McCoy v. Danley, 20 Pa. St. 89.

2. The general rule in regard to water is the same as that in regard to any other thing dangerous or liable to do mischief if it escape, viz.:

One who, for his own purposes, brings upon his land, and collects and keeps there, anything likely to do mischief if it escape, must keep it in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God. Per Blackburn, J., in Fletcher v. Ryland, L. R. 2 Exch. Div. 279; 35 L. J. Exch. 154; L. R. 3 Eng & I. App. 330.

Lord Cranworth says: If a person brings and accumulates on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape and cause damage, he is responsible however careful he may have been, and whatever precautions he may have taken to prevent the damage;

and the doc

trine is founded in good sense. For when one person, in managing his own affairs, causes, however indirectly, damage to another, it is obviously only just that he should be the party to suffer. He is bound sic uti tuo ut non lædit alieL. R. 3 Eng. & Ir. Ap. 330; Madras Railway Co. V. Zemindar of Carvetinaganum, 20 W. R. 865; 30 L. T. N. S. 770.


But one who stores water on his own land, and uses all reasonable care to

keep it safely there, is not liable for damage effected by an escape of the water, if the escape be caused by the act of God, or vis major; e.g.. by an extraordinary rainfall, which could not reasonably have been anticipated, although if it had been anticipated the effect might have been prevented. Nichols v. Mauland, 2 L. R. Exch. Div. 1; 46 L.J. Exch. Div. 174; 33 L. T. N. S. 265.

The plaintiffs hired of the defendant the ground-floor of a warehouse, the upper part of which was occupied by the defendant himself. The water from the roof was collected by gutters into a box, from which it was discharged by a pipe into the drains. A hole was made in the box by a rat, through which the water entered the warehouse and wetted the plaintiffs' goods. The defendant had used reasonable care in examining and seeing to the security of the gutters and the box. In an action by the plaintiffs against the defendant for the damages caused, held, that the defendant was not liable, either on the ground of an implied contract or on the ground that he had brought the water to the place from which it entered the warehouse. Carstairs v. Taylor, L. R. 6 Exch. 217; 40 L. J. Rep. Exch. 129.

But one who, for his own purposes, so manages his land as to collect there in abnormal quantities anything likely to do mischief if it escape is prima facie answerable for the damage consequent upon its escape. The defendants' mines adjoined and communicated with the plaintiffs', and on the surface of the defendants' land were certain hollows and openings, partly caused by water and partly made to facilitate defendants' workings. Across the surface of their land there ran a watercourse. In Novem


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, (which were sufficient for all ordinary occasions) burst in consequence of exceptionally heavy rains, and the water escaped into and accumulated in the hollows and openings, where the rains had already caused an unusual amount of water to collect, and thence by fissures and cracks water passed into the defendant's and so into the plaintiff's mines. If the land had been in its natural condition the water would have spread itself over the surface, and have been innocuous. The defendants were not guilty of any actual negligence in the management of their mines. In an action by the plaintiff to recover the damage he had sustained, held, that the defendants were liable, although they were not guilty of any personal negligence, and although the accident arose from exceptional causes. Smith v. Fletcher, 7 L. R. Exch. 305, 41 L. J. Exch. 193.

In King v. Truffin, 1 B. & Ad. 874, where the defendants had erected fenders to protect their land in time of flood, Lord Tenterden, C. J.. said:

Damage from Wind and Rain."It has been long established that the ordinary course of water cannot be lawfully changed or obstructed for the benefit of one class of persons to the injury of another. Unless, therefore, a sound distinction can be made between the ordinary course of water flowing in a bounded channel at all usual seasons and the extraordinary course which its superabundant quantity has been accustomed to take at particular seasons, the creation and continuance of these fenders cannot be justified." Angell on Watercourses, $347.

Riparian Owner's Liability. A riparian owner is entitled to secure the water in the channel of a stream in its natural state up to his neighbor's line; and is not answerable for damage done by high water, however it may have been incurred by obstructions below. He is not liable for loss occasioned by unusual and extraordinary rains or winds. China 7. Southwick, 12 Me. 238; Monongahela Nav. Co. v. Coon, 6 Binney (Pa.), 383; Smith v. Agawam Canal Co., 2 Allen (Mass.). 355; Bristol Hydraulic Co. v. Boyd, 67 Ind. 236; Curtis v. Eastern R. Co., 98 Mass. 428; Boynton v. Gilman, 53 Vt. 17; Curtis v. Kidder, 24 N. H. 364.

Floods from Pipe.-When the precautions of a water company (which had ob

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a period of extraordinary rainfall, which swelled the drain in consequence of the outlet thereof not being sufficiently widened by other parties, whose duty it was to keep the outlet of a certain width. Harrison v. Great Northern Railway Co., 10 Jur. 992; 3 H. & C. 231.

The legal maxim, Causa propinqua non, remota, spectatur, governs.

In China v. Southwick, 12 Me. 238, an instruction to the jury that if the damage was occasioned by great rains or by the violence of the wind, the defendants were not liable if the jury were satisfied that the head of water raised by defendant's dam was not high enough to do damage to defendant's bridge, was sustained. Floods of Rivers. The legislative grantees of a right to improve the navigation of a river by erecting dams, locks, etc., if chargeable with no want of attention as to the probable effect of the erection of their works, are not answerable for consequences it was impossible to foresee and prevent. For an act of Providence alone they are not answerable. To fix them with liability for mischief done by a flood or storm, there must be a concurrence of negligence with the act of Providence. Lehigh Bridge Co. v. Lehigh Coal and Navigation Co., 4 Rawle (Pa.), 9; Bell v. McClintock, 9 Watts (Pa.), 119. When, however, injury arises from causes which might have been foreseen and avoided, as in cases of ordinary periodical freshets, it is but right that he whose superstructure is the immediate cause of the mischief should bear the loss. Bell v. McClintock, 9 Watts (Pa.), 119.

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