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care required in such cases must be that which a discreet person would use if he were the owner of the property exposed to damage.
IV. Duty of Owners of Dams.—The owner of a dam must use such reasonable care and skill in its construction and maintenance that it will be capable of resisting usual, ordinary, and expected floods.2
1. Gray v. Harris, 107 Mass. 492 ; particular periods of the year. Ames v. Lapham v. Curtis, 5 Vt. 371 ; Mayor Cannon River Manusacturing Co., 27 of N. Y. v. Bailey, 2 Denio (N. Y.), 433; Minn. 245. Washburn v. Gilman, 64 Me. 163 ; * Ordinary stage of water” is used to Turner v. Tuolumne Co. Water Co., 25 indicate the stage of water that ordinarily Cal. 397; Campbell v. Bear River & occurs in the spring or other seasons of Auburn W. & M. Co., 35 Cal. 679; the year when the stream stands at the Adams v. Walker, 34 Conn. 408 ; Palmer highest water-mark. It does not mean v. Waddell, 22 Kan. 352 ; Atchison, etc , that stage of water which continues for R. Co. v. Hammer, 22 Kan. 763 ; Shaw the longest period in ordinary seasons. v. Kansas City, St. Jo. etc. R. Co., 71 Freshets and floods, which are unusual Mo. 237 ; Railroad Co. v. Carr, 38 Ohio and occur after great storms, cannot be St. 448 ; Connecticut r. Ousatonic Water said to cause an ordinary stage of water. Co., 51 Conn. 137 ; McKenzie v. Missis. Decorah Woollen Mill Co. v. Greer, 58 sippi & Rum. River Boom Co., 29 Minn. Iowa. 97 288.
Ordinarily Recurring Freshots. --The Act of God. -Act of God, as applied owner of a dam, although erected on his “to water-courses, would include only own land, is answerable to his neighbor floods or extraordinary freshets, and for injury to his land in times of ordinary not such rises or high water in a stream freshets occasioned or enhanced by the as is usual and ordinary, and reasonably dim. In erecting his dam the owner is anticipated at particular periods of the bound to regard his neighbor's rights and year. Dorman v. Ames, 12 Minn. 463. security not only in ordinary stages of
Water stored. -One who stores water water, but in those stages occasioned by on his own land, and uses all reasonable ordinarily recurring freshets. Casebers care to keep it safely there, is not liable v. Mowry, 55 Pa. St. 423; Bell v. Mcfor an escape of the water which injures Clintock, 9 Watts (Pa.), 119: Bristol Hyhis neighbor, if the escape be caused by draulic Co. v. Boyer, 67 Ind. 237. an agent beyond his control, such as a 2. He is not responsible for inevitable storm which amounts to vis major, or accidents or for injuries sustained by the act of God, in the sense that it is extraordinary freshets which could not practically, though not physically, im- be anticipated or guarded against. If possible resist it. Nichols v. Mars. the stream is unceasingly subject to great land, L. R. 10 Exch. 255; 2 Exch. Div. 1. freshets, they must be guarded against,
Natural or Ordinary State of a Stream.- although they occur only once in several The natural state of a stream is that in years and at no regular intervals. Mayor which the stream is under the ordinary of N. Y. v. Bailey, 2 Denio (N. Y.), 433; operation of the physical laws which af. Lapham v. Curtis, 3 Va. 371; China v. fect it, it may be different at different Southwick, 12 Me. 239; Smith v. Agawam seasons of the year, and yet be ordinary Canal Co., 2 Allen (Mass.). 355; Wendell by the recurrence of the same conditions v. Pratt, 12 Allen (Mass.),464; Inhabitants about the same season every year; it of Shrewsbury v. Smith, 12 Curt. (Mass.) may, ordinarily, be high a portion of the 177; Gray v. Harris, 107 Mass. 492; year, low at another portion, and at an- Brown v. Dean, 123 Mass. 254; Hoffman other it may be at a medium stage: yet v. Tuolumne Co. Water Co., 10 Cal. 413; as these are ordinary by reason of their Fraler v. Sears Union Water Co., 12 Cal. annual or frequent occurrence, so that a 555; Errett v. Hydraulic Flume Tunnel variance therefrom is an exception, they Co., 23 Cal. 225; Bristol Hydraulic Co. are the natural condition of the stream. v. Boyes, 67 Ind. 236; Rich ?'. Keshena Dorman v. Ames, 12 Minn. 452.
Improvement Co., 56 Wis. 287: Puch v. The ordinary stage of water in a stream Wheeler, 2 Dev. & B. (N. Car.) 150; includes its stage in such rises or high Lang v Arnett, 33 Pa. St. 169. See water as are usual, ordinary, and rea- DAMS; Angell on Water-courses. $ 336; sonably to be anticipated, but does not Washburn on Easements, *288, *289. include such extraordinary freshers In McCoy v. Danby, 20 Pa. St. 85, an cannot reasonably be anticipated at action on the case for erecting a dam by
V. Responsibility of Railroads for Damage caused by Floods.-A railway company is not liable in damages for culpable negligence when the injury results from the failure of the company to provide in the construction of its road-bed against extraordinary floods, unknown to human experience, and which could not have been reasonably anticipated in the construction of the road. 1
which the water of the stream was penned Docks Co., L. R. 9 Ch. Div. 503. In this back so as to overflow the plaintiff's land case it was held an extraordinary high above, evidence was offered to show tide, although an act of God, did not exthe injury which had been caused by the cuse the defendant from liability for failstructure at times of ordinary and natural ure to keep their bank up to the level rises in the stream; at regular and pe- prescribed by statute; yet they ought to riodical rises; at times of high water have an opportunity of showing that the occurring at the usual flood seasons; and damage done by the act of God and the at times of ordinary and common fresheis. damage done through their negligence All this was rejected, and the court held in should be apportioned. the charge that there could be no recov- 1. Internat. & Great North, R. Co, v. ery except for damage done by swelling Halloren, 53 Tex. 46; s. C., 3 Am. back the water at its ordinary stage, and & Eng. R. R. Cas. 343; Balto. & this was defined to be that situation in Ohio & Co. v. Sulphur Springs (Pa.), which it remains longest, excluding the 2 Am. & Eng. R. Ř. Cas. 166; Gates dry season.
V. Southern Minnesota R. Co. (Minn.) • We find no authority for this rule. 2 Am. & Eng. R. R. Cas. 237; Great One objection to it is the extreme difficul. Western R. Co. v. Braid, I Moo. P. ty of its application. In this country C. C. N. S. 101: Ellet 7. St. Louis, there is no dry season properly so called. Kansas City & Northern R. Co., 76 Mo. We have periods of drought which come 516; s. C., 12 Am. & Eng. R. R. Cas. 183, regularly and at all times of the year, and note; Nithers v. North Bend R. Co., The streams rise immediately after a rain 3 H. & N. 969; Rusk v. Williams. 27 L. J. or the melting of the snows, and the fall n. S. Exch. 357; Memphis & Charleston begins as soon as the rise ceases. 'That R. Co. v. Reeves, io Wall. (U. S.) 176; they ever remain in one situation for a Ely r. St. Louis, Kansas City & North. preceptible length of time would be hard ern R. Co., 77 Mo. 34; s. c.. 16 Am. & to prove.
If they do, it would re- Eng. R. R. Cas. 312; Sabin & Easi Texas quire an observation so close and so con- R. Co. v. Hadnot (Texas), 30 Am. & Eng. stant to know in what situation they may R. R. Cas. 197; Gillespie v. St. L., K. C. remain longest, that no person of ordinary & N. R. Co., 6 Mo. App. 554. habits could be expected to tell it.
There is no liability on a railroad comOne who erects a dam is responsible for pany for not constructing a culvert so as all the injury caused by it in times of to pass extraordinary floods. Pittsburg, usual, ordinary, and expected freshets. A Fort Wayne & Chicago R. Co. v. Gilleflood is another thing. . It may not come land, 56 Pa. St. 445. Extraordinary for years together. When it does come, foods are “those unexpected visitations it is a visitation of Providence, and the whose comings are not foreshadowed by destruction it brings with it must be the usual course of things, and must be borne by those on whom it happens to laid to the account of Providence, whose fall." Per Black, C.J. See DAMS. dealings, though they may afflict, wrong Flood by Extraordinary High Tide.-In
Per Agnew, J. in Pittsburg, order that an extraordinary natural event, Fort Wayne & Chicago R. Co. v. Gillesuch as a very high tide, should be, in the land 56 Pa. St. 53. legal sense of the words, an act of God, The ordinary language of the cases in it is 'not necessary that such an event describing a storm or flood for the reshould never have happened before; it sults of which a railroad company is not is sufficient that its happening could not liable is “a storm of unusual and extrahave been reasonably expected. If such ordinary violence.' Phila. & Reading an event has happened once, but there is R. Co. v. Anderson, 94 Pa. Si. 351. Or nothing to lead to the inference that it is an unusual and extraordinary storm. likely to recur, it does not, if it happens greater and more destructive than was a second time, cease to be an act of God. ever known to happen before or since." Nitro-Phosphate & Adams Chemical Livezey v. City of Philadelphia, 64 Pa. Manure Co. v. London & St. Katharine St. 106.
FLOOR.-A story; a “section of a building between parallel planes. And the company is not bound
that the engineers in the construction of vide against such unprecedented the embankment and culvert could not emergency as a greater flood than was reasonably have been expected to have ever before known in the locality, unless anticipated and provided against it, then it has reason to suspect that such emer- the railroad company was not liable; but gency is about to arise. Nashville & if, although the overflow was extraordi. Chattanooga R. Co. v. David. 6 Heisk. nary, it might reasonably have been an. (Tenn.) 261; Same v. Ring, 6 Heisk. ticipated and provided against, the rail(Tenn.) 269. In the former case “all the road was liable; and that the occurrence proof shows beyond question that such a of the previous heavy overflows was sufflood had never occurred at this place ficient evidence to warrant the jury that within the memory of man. And the the one in question ought reasonably to court say: “It might with equal propriety have been anticipated. be required that the road should use all Goods Injured by Flood. - Where goods reasonable efforts to provide against a are delayed through the negligence of a flood such as the Deluge in the days of carrier, and while so delayed are injured Noah, for in this case there is at any rate by an unexampled and unprecedented one precedent to give warning, while in flood in New York, the company has been the other, as far as the proof goes, there held liable. Michaels v. N. Y. C. R. Co., was not even one case to indicate to them so N. Y. 564. But in Massachusetts and that such a freshet as the one under con- Pennsylvania the flood is considered a sideration might be expected to occur." remote cause, and the company is not Floods may be none the less extraordie held liable. Denny v. N. Y. C. R. Co., 13 nary in their character because several Gray (Mass.), 481; Morrison v. Davis & happen in rapid succession of equal vio- Co., 20 Pa. St. 171. lence.” In Pittsburg, Fort Wayne & Duty of Examination of Tracks and ReChicago R. Co. v. Gilleland, 56 Pa. St. pairs after Floods. It is the duty of a 445, the court say: “If all were extraor- railroad company to examine its tracks dinary, ... the surprise at the second and during and after an extraordinary flood to third could not be less than at the first, prevent accidents. International & Gt. N. and it was still more surprising that they R. Co. 7. Halloren, 53 Tex. 46; Hardy v. should come in this rapid succession. Carolina Cent. R. Co., 74 N. Car. 734. Being extraordinary, neither second: nor And to repair damage done by flood third could have been expected more than to fences along its line within a reason. the first. The rule as to extraordinary able time. Fielz v. Kansas City, St. J. floods was therefore not changed. But the & C. B. R. Co. (Iowa), 13 Am. & Eng. frequent recurrence of what was supposed R. R. Cas. 558. See RAILROADS. to be extraordinary was some evidence, When Overflow-water from River with. that the real character of all these floods in Rule as to Surface-water -Overflow had been mistaken by those who testified water from a river in time of flood is as to their extraordinary character, and surface-water within the meaning of the that they were really only ordinary fresh- rule that a land-owner has no right, by ets, though measuring up to the highest erecting an embankment, to stop the altitude of that class. It was proper, natural flow of surface-water, or to divert therefore, to submit this question to the its course, so as to throw it upon the jury, with instruction, if they so found land of his neighbor. Shane v. Kansas the fact, to apply the rule as to ordinary City, St. Joseph & Council Bluffs R. Co. freshets."
71 Mo. 237; S. C., 5 Am. & Eng R. R. In Gulf, Colorado & Santa Fe R. Co.v. Cas. 64, and note. See SURFACE-WATER. Pomeroy, 30 Am. & Eng. R. R. Cas. 200, 1. Lowell v. Strahan, 145 Mass. I; s. C., the plaintiff's crops on his land adjacent 12 N. E. Rep. 401. A lease of “the first to the track of the defendant railroad floor” in a building includes the outside company were injured by an overflow of of the front wall of that part of the builda neighboring river (in 1885), caused by ing. and the lessee may place a sign insufficient culverts in the defendant's thereon. railroad embankment. The overflow was In an action on a policy of insurance an unusual one, but it was shown that in which contained the provision, “Water 1833, 1843, and 1852 similar ones oc. on each floor, with hose, and a watchcurred. In an action to recover damages man is to be kept on the premises at for such injury, held, that if the overflow night," it was error not to submit the was of such an extraordinary character meaning of “floor” to the jury. EviFLOOR-CLOTH. -See CANVAS.
FLOTSAM.—(See also JETSAM; LIGAN; and WRECK.)-Flotsam is where goods are cast into the sea and continue swimming on the surface of the waves. 1
FLOWING.—(See also FLOODS.) Present participle of the verb “to flow,” that is, to inundate, to cover with water; used in the expression "flowing lands." 2
FLUID.—(See also BURNING FLUID; CAMPHENE.)—Any body not solid. The term includes both liquids and gases; whether it means one only of these, or both, must in each case be determined by the surrounding circumstances.?
dence that in factory parlance it did not Statutes.” Upon a petition for a mandainclude the basement or the attic was mus to require the county commissioners held admissible. N. Y. B. & P. Co. v. to assess damages against the Essex Washington F. Ins. Co., 10 Bosw. (N. Y.) Company for flowing the petitioner's land 428.
in Lowell, by erecting a dam across the 1. i Blackstone's Com. 292. Flotsan Merrimack River at Lawrence, pursuant is when a ship is sunk, or otherwise per- to their act of incorporation, it was held ished, and the goods float on the sea. that the provision had reference not only Constable's Case, 5 Coke, 106.
to the form of remedy, but also to the things found floating are not flotsam," limitation of "three years from the time unless they have been at sea in a ship, of taking the land." imposed by Rev. and separated from it by some peril. Stat. c. 39, 58; the court, Shaw, C. J., Therefore where timber was found floare saying: “The term flowing lands has ing without an apparent owner at sea, acquired a definite and specific meaning having drifted from the place where it in our law. It commonly imports raiswas moored in a river, it was held not to ing and setting back water on another's be “wreck" within the meaning of that land, by a dam placed across a stream or word as defined by The Merchant Ship- water-course which is the natural drain ping Act of 1854, 17 and 18 Vict. c. 104, and outlet for surplus water on such although section 2 of said act declared land. This is usually done to enable a that “wreck shall include jetsam; floatparty to raise a head of water for mill sam, lagan, and derelict found in or on purposes, regarded by the law as benethe shores of the sea or any tidal water;' ficial to the public. Such dam may be the court, Pollock, C. B., saying: “The authorized either by a general law, as in action was brought in respect of the de- the case of the Mill Acts, or by specific cision of two justices upon a claim for legislative act as in this act of incorpo. services rendered in securing timber, sup- ration. In either case the damage to posed to have been carried out to sea by the land owner is intended as an indemthe tide from above Yarmouth Harbor, nity, not for casual or occasional damin consequence of the fastening having ages, which may be afterwards suffered, become loose, and found floating in the by a freshet or food, but for all the dam
The question arises whether the age he may suffer by all the flowing justices had jurisdiction. I think that which may be caused by the erection of they had not. Flotsam, jetsam, and lagan such dam. It is the erection of the dam, are terms not applicable to property in under the authority of law, which renders such a condition." Palmer v. Rouse, 3 it immovable, and which may, and by Hurl. & N. 505.
reasonable estimate will, cause the lands 2. The act incorporating the Essex of an owner to be more or less flowed, Company, and authorizing them to con- for which the law provides an indemnity. struct a dam across the Merrimack River The right to apply for damages, there(St. 18.45, c. 143), provided that "any per- fore, accrues when the dam is complete son who shall be damaged in his prop- and put into operation; and we are of erty by said corporation, in cutting or opinion that the limitation commences making canals through his lands or by and runs from that time."
Call v. flowing the same, shall have the same County Commissioners of Middlesex, 2 remedies as are provided by law for per- Gray (Mass.), 232. See also Heard v. sons damaged by railroad corporations, Middlesex Canal, 5 Met. (Mass.) 81. in the thirty-ninth chapter of the Revised 3. In an action instituted to restrain
FLYING SWITCH.—(See CROSSINGS, Vol. IV. 936. See also RUNNING SWITCH.)-An expression used in railroad parlance. It is thus defined : “To make a running switch,' a train approaches with considerable speed, and while so approaching, the car to be left is disconnected; the forward part of the train then passes rapidly over the switch, the rear part is somewhat checked, and the intermediate car to be left is switched off, and the switch is replaced in season for the rear part of the train to unite with the front part thereof, without stopping."1
FODDER.–Food served to cattle, horses, or sheep in the stall, as distinguished from pasture.?
the infringement of letters patent the description of the several modes pointed plaintiff's patent was for regulating the out of using the dash-pot for the purposes closing of the valves of steam-engines, intended. No doubt the term fuid,' in and preventing them from slamming, by its generic and technically scientific means of a water reservoir; the specific sense, includes air and the gases; but in cation saying: “The reservoir is to con- the sense in which it is used by the tain water, oil, or other 'fuid,' say to patentee, and in the connection in which two thirds of its height, more or less;" it is found, it means a Auid that is tanand the claim made being: “I also claim gible, that can be seen and handled, like the manner of regulating the closing of water or oil, and with which a vessel can the valves, and of effectually preventing be filled wholly or in part, at the option them from slamming, by means of a of the patentee.
These are the only water reservoir.” The defendant's patent description of fluids' that can be used was one in which the weights that close in his reservoir, in the way pointed out the valves were prevented from slamming by him.” Sickels v. Youngs, 3 Blatch. by being cushioned on air. This was (U. S.) 293, 301. held by the court not to be an infringe- 1. Browo v. New York Central R. Co., ment of the former patent, Nelson, J., 32 N. Y. 597, note. In this case it was saying: “Now, it will be seen that the held that to make such a switch over the apparatus described contemplates the use crossing of the track by a public road, in of water, or, at most, of some liquid the populous part of a village, is of incompressible in its operation and effect, itself an act of gross and criminal negliand not the use of air. Indeed, it is gence on the part of the railroad commanifest that air could not be used at all, pany. according to the arrangement.
flying switch is made by uncoupthe claim, which is the summing up of ling the cars from the engine while in what is deemed the thing discovered, and motion, and throwing the cars on to the is required by the statute, a water reser- side track, by turning the switch, after voir is alone specified. But what is, if the engine has passed it, upon the main possible, still more decisive, the patentee, track.” Greenleaf v. Illinois Central R. in describing what the reservoir shall Co., 29 Iowa, 14, 39. contain, also directs the manner. It is 2. The English General Turnpike Act. 'to contain water, oil, or other fluid, say 3 Ceo. IV. c. 26, enacts by section 32 to two thirds of its height, more or less.' that no toll shall be demanded or taken The experts called on the part of the on any turnpike road for any horse, plaintiffs, and their counsel on the argu- beast, or other cattle, or carriage emment. maintained that, according to ployed in carrying or conveying, having scientific classification, the term 'fuid' been employed only in carrying or conincluded air, and hence this element was veying on the same day any hay, straw, embraced in the description. But neither fodder for cattle, and corn in the straw of them undertook to explain how the which has grown or arisen on land or reservoir could be filled with air to two ground in the occupation of the owner of thirds of its height, agreeably to the any such hay, straw, fodder, or corn in direction prescribed. The thing is simply the straw, potatoes or other agricultural absurd. The whole description shows produce, and which has not been bought, that that element was not in the contem sold, or disposed of, nor is going to be plation of the patentee. The terms used sold or disposed of." A horse and cart necessarily exclude it, and so does the passed through toll-gate carrying