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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.1
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; Lapham v. Curtis, 5 Vt. 371; Mayor of N. Y. v. Bailey, 2 Denio (N. Y.). 433; Washburn v. Gilman, 64 Me. 163: Turner v. Tuolumne Co. Water Co., 25 Cal. 397; Campbell v. Bear River & Auburn W. & M. Co., 35 Cal. 679; Adams v. Walker, 34 Conn. 468; Palmer v. Waddell, 22 Kan. 352; Atchison, etc, R. Co. v. Hammer, 22 Kan. 763; Shaw v. Kansas City, St. Jo. etc. R. Co., 71 Mo. 237; Railroad Co. v. Carr, 38 Ohio St. 448; Connecticut v. Ousatonic Water Co., 51 Conn. 137; McKenzie v. Missis sippi & Rum. River Boom Co., 29 Minn. 288.
Act of God.-Act of God, as applied "to water-courses, would include only floods or extraordinary freshets, and not such rises or high water in a stream as is usual and ordinary, and reasonably anticipated at particular periods of the year.' Dorman v. Ames, 12 Minn. 463.
Water stored.-One who stores water on his own land, and uses all reasonable care to keep it safely there, is not liable for an escape of the water which injures his neighbor, if the escape be caused by an agent beyond his control, such as a storm which amounts to vis major, or the act of God, in the sense that it is practically, though not physically, impossible to resist it. Nichols v. Marsland, L. R. 10 Exch. 255: 2 Exch. Div. 1.
Natural or Ordinary State of a Stream.— The natural state of a stream is that in which the stream is under the ordinary operation of the physical laws which affect it, it may be different at different seasons of the year, and yet be ordinary by the recurrence of the same conditions about the same season every year; it may, ordinarily, be high a portion of the year, low at another portion, and at another it may be at a medium stage: yet as these are ordinary by reason of their annual or frequent occurrence, so that a variance therefrom is an exception, they are the natural condition of the stream. Dorman v. Ames, 12 Minn. 452.
particular periods of the year. Ames v. Cannon River Manufacturing Co., 27 Minn. 245.
"Ordinary stage of water" is used to indicate the stage of water that ordinarily occurs in the spring or other seasons of the year when the stream stands at the highest water-mark. It does not mean that stage of water which continues for the longest period in ordinary seasons. Freshets and floods, which are unusual and occur after great storms, cannot be said to cause an ordinary stage of water. Decorah Woollen Mill Co. v. Greer, 58 Iowa, 97
Ordinarily Recurring Freshets.-The owner of a dam, although erected on his own land, is answerable to his neighbor for injury to his land in times of ordinary freshets occasioned or enhanced by the dim. In erecting his dam the owner is bound to regard his neighbor's rights and security not only in ordinary stages of water, but in those stages occasioned by ordinarily recurring freshets. Casebers v. Mowry, 55 Pa. St. 423; Bell v. McClintock, 9 Watts (Pa.), 119: Bristol Hydraulic Co. v. Boyer, 67 Ind. 237.
2. He is not responsible for inevitable accidents or for injuries sustained by extraordinary freshets which could not be anticipated or guarded against. If the stream is unceasingly subject to great freshets, they must be guarded against, although they occur only once in several years and at no regular intervals. Mayor of N. Y. v. Bailey, 2 Denio (N. Y.), 433; Lapham v. Curtis, 3 Va. 371; China v. Southwick, 12 Me. 239; Smith v. Agawam Canal Co., 2 Allen (Mass.).355; Wendell v. Pratt, 12 Allen (Mass.),464; Inhabitants of Shrewsbury v. Smith, 12 Curt. (Mass.) 177; Gray v. Harris, 107 Mass. 492; Brown v. Dean, 123 Mass. 254; Hoffman v. Tuolumne Co. Water Co., 10 Cal. 413; Fraler v. Sears Union Water Co., 12 Cal. 555; Errett v. Hydraulic Flume Tunnel Co., 23 Cal. 225; Bristol Hydraulic Co. v. Boyes, 67 Ind. 236; Rich v. Keshena Improvement Co., 56 Wis. 287; Puch v. Wheeler, 2 Dev. & B. (N. Car.) 150; Lang Arnett, 33 Pa. St. 169. See DAMS; Angell on Water-courses. $ 336; Washburn on Easements, *288, *289.
The ordinary stage of water in a stream includes its stage in such rises or high water as are usual, ordinary, and reasonably to be anticipated, but does not include such extraordinary freshets 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 back so as to overflow the plaintiff's land above, evidence was offered to show the injury which had been caused by the structure at times of ordinary and natural rises in the stream; at regular and periodical rises; at times of high water occurring at the usual flood seasons; and at times of ordinary and common freshets. All this was rejected, and the court held in the charge that there could be no recovery except for damage done by swelling back the water at its ordinary stage, and this was defined to be that situation in which it remains longest, excluding the dry season.
We find no authority for this rule. One objection to it is the extreme difficulty of its application. In this country there is no dry season properly so called. We have periods of drought which come regularly and at all times of the year. The streams rise immediately after a rain or the melting of the snows, and the fall begins as soon as the rise ceases. That they ever remain in one situation for a preceptible length of time would be hard to prove. If they do, it would require an observation so close and so constant to know in what situation they may remain longest, that no person of ordinary habits could be expected to tell it. One who erects a dam is responsible for all the injury caused by it in times of usual, ordinary, and expected freshets. A flood is another thing. It may not come for years together. When it does come, it is a visitation of Providence, and the destruction it brings with it must be borne by those on whom it happens to fall." Per Black, C.J. See DAMS.
Flood by Extraordinary High Tide.-In order that an extraordinary natural event, such as a very high tide, should be, in the legal sense of the words, an act of God, it is not necessary that such an event should never have happened before; it is sufficient that its happening could not have been reasonably expected. If such an event has happened once, but there is nothing to lead to the inference that it is likely to recur, does not, if it happens
a second time, cease to be an act of God. Nitro-Phosphate & Adams Chemical Manure Co. v. London & St. Katharine
Docks Co.,L. R. 9 Ch. Div. 503. In this case it was held an extraordinary high tide, although an act of God, did not excuse the defendant from liability for failure to keep their bank up to the level prescribed by statute; yet they ought to have an opportunity of showing that the damage done by the act of God and the damage done through their negligence should be apportioned.
1. Internat. & Great North. R. Co. v. Halloren, 53 Tex. 46; s. c., 3 Am. & Eng. R. R. Cas. 343; Balto. & Ohio & Co. v. Sulphur Springs (Pa.), 2 Am. & Eng. R. R. Cas. 166; Gates v. Southern Minnesota R. Co. (Minn.) 2 Am. & Eng. R. R. Cas. 237: Great Western R. Co. v. Braid, I Moo. P. C. C. N. S. 101: Ellet v. St. Louis, Kansas City & Northern R. Co., 76 Mo. 516; s. c., 12 Am. & Eng. R. R. Cas. 183, and note; Nithers v. North Bend R. Co., 3 H. & N. 969; Rusk v. Williams. 27 L. J. n. S. Exch. 357; Memphis & Charleston R. Co. v. Reeves, 10 Wall. (U. S.) 176; Ely 2. St. Louis, Kansas City & Northern R. Co.. 77 Mo. 34; s. c.. 16 Am. & Eng. R. R. Cas. 342; Sabin & East Texas R. Co. v. Hadnot (Texas), 30 Am. & Eng. R. R. Cas. 197; Gillespie v. St. L., K. Č. & N. R. Co., 6 Mo. App. 554.
There is no liability on a railroad company for not constructing a culvert so as to pass extraordinary floods. Pittsburg, Fort Wayne & Chicago R. Co. v. Gilleland, 56 Pa. St. 445. Extraordinary floods are "those unexpected visitations whose comings are not foreshadowed by the usual course of things, and must be laid to the account of Providence, whose dealings, though they may afflict, wrong no one. Per Agnew, J. in Pittsburg, Fort Wayne & Chicago R. Co. v. Gilleland 56 Pa. St. 53.
The ordinary language of the cases in describing a storm or flood for the results of which a railroad company is not liable is "a storm of unusual and extraordinary violence.' Phila. & Reading R. Co. v. Anderson, 94 Pa. St. 351. Or
an unusual and extraordinary storm. greater and more destructive than was ever known to happen before or since.' Livezey v. City of Philadelphia, 64 Pa. St. 106.
FLOOR. A story; a "section of a building between parallel planes."
And the company is not bound to provide against such an unprecedented emergency as a greater flood than was ever before known in the locality, unless it has reason to suspect that such emergency is about to arise. Nashville & Chattanooga R. Co. v. David, 6 Heisk. (Tenn.) 261; Same v. Ring, 6 Heisk. (Tenn.) 269. In the former case "all the proof shows beyond question that such a flood had never occurred at this place within the memory of man." And the court say: "It might with equal propriety be required that the road should use all reasonable efforts to provide against a flood such as the Deluge in the days of Noah, for in this case there is at any rate one precedent to give warning, while in the other, as far as the proof goes, there was not even one case to indicate to them that such a freshet as the one under consideration might be expected to occur.' Floods may be none the less extraordinary in their character because several happen in rapid succession of equal violence." In Pittsburg, Fort Wayne & Chicago R. Co. v. Gilleland, 56 Pa. St. 445, the court say: "If all were extraordinary, ... the surprise at the second and third could not be less than at the first, and it was still more surprising that they should come in this rapid succession. Being extraordinary, neither second. nor third could have been expected more than the first. The rule as to extraordinary floods was therefore not changed. But the frequent recurrence of what was supposed to be extraordinary was some evidence, that the real character of all these floods had been mistaken by those who testified as to their extraordinary character, and that they were really only ordinary freshets, though measuring up to the highest altitude of that class. It was proper, therefore, to submit this question to the jury, with instruction, if they so found the fact, to apply the rule as to ordinary freshets."
In Gulf, Colorado & Santa Fe R. Co. v. Pomeroy, 30 Am. & Eng. R. R. Cas. 200, the plaintiff's crops on his land adjacent to the track of the defendant railroad company were injured by an overflow of a neighboring river (in 1885), caused by insufficient culverts in the defendant's railroad embankment. The overflow was an unusual one, but it was shown that in 1833, 1843, and 1852 similar ones occurred. In an action to recover damages for such injury, held, that if the overflow was of such an extraordinary character
that the engineers in the construction of the embankment and culvert could not reasonably have been expected to have anticipated and provided against it, then the railroad company was not liable; but if, although the overflow was extraordinary, it might reasonably have been anticipated and provided against, the railroad was liable; and that the occurrence of the previous heavy overflows was sufficient evidence to warrant the jury that the one in question ought reasonably to have been anticipated.
Goods Injured by Flood.-Where goods are delayed through the negligence of a carrier, and while so delayed are injured by an unexampled and unprecedented flood in New York, the company has been held liable. Michaels v. N. Y. C. R. Co., So N. Y. 564. But in Massachusetts and Pennsylvania the flood is considered a remote cause, and the company is not held liable. Denny v. N. Y. C. R. Co., 13 Gray (Mass.), 481; Morrison v. Davis & Co., 20 Pa. St. 171.
Duty of Examination of Tracks and Repairs after Floods. It is the duty of a railroad company to examine its tracks during and after an extraordinary flood to prevent accidents. International & Gt. N. R. Co. v. Halloren, 53 Tex. 46; Hardy v. Carolina Cent. R. Co., 74 N. Car. 734. And to repair damage done by flood to fences along its line within a reason. able time. Fielz. Kansas City, St. J. & C. B. R. Co. (Iowa), 13 Am. & Eng. R. R. Cas. 558. See RAILROADS.
When Overflow-water from River within Rule as to Surface-water-Overflow water from a river in time of flood is surface-water within the meaning of the rule that a land-owner has no right, by erecting an embankment, to stop the natural flow of surface-water, or to divert its course, so as to throw it upon the land of his neighbor. Shane v. Kansas City, St. Joseph & Council Bluffs R. Co. 71 Mo. 237; s. c., 5 Am. & Eng R. R. Cas. 64, and note. See SURFACE-WATER.
1. Lowell v. Strahan, 145 Mass. I; s. c., 12 N. E. Rep. 401. A lease of the first floor" in a building includes the outside of the front wall of that part of the building. and the lessee may place a sign thereon.
In an action on a policy of insurance which contained the provision, "Water on each floor, with hose, and a watchman is to be kept on the premises at night." it was error not to submit_the meaning of "floor" to the jury. Evi
FLOOR-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 include the basement or the attic was held admissible. N. Y. B. & P. Co. v. Washington F. Ins. Co., 10 Bosw. (N. Y.) 428.
1. I Blackstone's Com. 292. Flotsam is when a ship is sunk, or otherwise perished, and the goods float on the sea. Constable's Case, 5 Coke, 106. But things found floating are not "flotsam," unless they have been at sea in a ship, and separated from it by some peril. Therefore where timber was found floating without an apparent owner at sea, having drifted from the place where it was moored in a river, it was held not to be "wreck" within the meaning of that word as defined by The Merchant Shipping Act of 1854, 17 and 18 Vict. c. 104. although section 2 of said act declared that wreck shall include jetsam; float sam, lagan, and derelict found in or on the shores of the sea or any tidal water;' the court, Pollock, C. B., saying: "The action was brought in respect of the decision of two justices upon a claim for services rendered in securing timber, supposed to have been carried out to sea by the tide from above Yarmouth Harbor, in consequence of the fastening having become loose, and found floating in the sea. The question arises whether the justices had jurisdiction. I think that they had not. Flotsam, jetsam, and lagan are terms not applicable to property in such a condition." Palmer v. Rouse, 3 Hurl. & N. 505.
2. The act incorporating the Essex Company, and authorizing them to construct a dam across the Merrimack River (St. 1845, c. 143), provided that "any person who shall be damaged in his property by said corporation, in cutting or making canals through his lands or by flowing the same, shall have the same remedies as are provided by law for persons damaged by railroad corporations, in the thirty-ninth chapter of the Revised
Statutes." Upon a petition for a mandamus to require the county commissioners to assess damages against the Essex Company for flowing the petitioner's land in Lowell, by erecting a dam across the Merrimack River at Lawrence, pursuant to their act of incorporation, it was held that the provision had reference not only to the form of remedy, but also to the limitation of "three years from the time of taking the land." imposed by Rev. Stat. c. 39, § 58; the court, Shaw, C. J., saying: The term flowing lands has acquired a definite and specific meaning in our law. It commonly imports raising and setting back water on another's land, by a dam placed across a stream or water-course which is the natural drain and outlet for surplus water on such land. This is usually done to enable a party to raise a head of water for mill purposes, regarded by the law as beneficial to the public. Such dam may be authorized either by a general law, as in the case of the Mill Acts, or by specific legislative act as in this act of incorporation. In either case the damage to the land-owner is intended as an indemnity, not for casual or occasional damages, which may be afterwards suffered, by a freshet or flood, but for all the damage he may suffer by all the flowing which may be caused by the erection of such dam. It is the erection of the dam, under the authority of law, which renders it immovable, and which may, and by reasonable estimate will, cause the lands of an owner to be more or less flowed, for which the law provides an indemnity. The right to apply for damages, therefore, accrues when the dam is complete and put into operation; and we are of opinion that the limitation commences and runs from that time." Call V. County Commissioners of Middlesex, 2 Gray (Mass.), 232. See also Heard v. Middlesex Canal, 5 Met. (Mass.) 81.
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 plaintiff's patent was for regulating the closing of the valves of steam-engines, and preventing them from slamming, by means of a water reservoir; the specification saying: "The reservoir is to contain water, oil, or other fluid,' say to two thirds of its height, more or less;" and the claim made being: "I also claim the manner of regulating the closing of the valves, and of effectually preventing them from slamming, by means of a water reservoir." The defendant's patent was one in which the weights that close the valves were prevented from slamming by being cushioned on air. This was held by the court not to be an infringement of the former patent, Nelson, J., saying: "Now, it will be seen that the apparatus described contemplates the use of water. or, at most, of some liquid incompressible in its operation and effect, and not the use of air. Indeed, it is manifest that air could not be used at all, according to the arrangement. And in the claim, which is the summing up of what is deemed the thing discovered, and is required by the statute, a water reservoir is alone specified. But what is, if possible, still more decisive, the patentee, in describing what the reservoir shall contain, also directs the manner. It is to contain water, oil, or other fluid, say to two thirds of its height, more or less.' The experts called on the part of the plaintiffs, and their counsel on the argument. maintained that, according to scientific classification, the term fluid' included air, and hence this element was embraced in the description. But neither of them undertook to explain how the reservoir could be filled with air to two thirds of its height, agreeably to the direction prescribed. The thing is simply absurd. The whole description shows that that element was not in the contem
plation of the patentee. The terms used necessarily exclude it, and so does the
description of the several modes pointed out of using the dash-pot for the purposes intended. No doubt the term 'fluid,' in its generic and technically scientific sense, includes air and the gases; but in the sense in which it is used by the patentee, and in the connection in which it is found, it means a fluid that is tangible, that can be seen and handled, like water or oil, and with which a vessel can be filled wholly or in part, at the option of the patentee. These are the only description of 'fluids' that can be used in his reservoir, in the way pointed out by him." Sickels v. Youngs, 3 Blatch. (U. S.) 293, 301.
1. Brown v. New York Central R. Co., 32 N. Y. 597, note. In this case it was held that to make such a switch over the crossing of the track by a public road, in the populous part of a village, is of itself an act of gross and criminal negligence on the part of the railroad company.
A flying switch is made by uncoupling the cars from the engine while in motion, and throwing the cars on to the side track, by turning the switch, after the engine has passed it, upon the main track." Greenleaf v. Illinois Central R. Co., 29 Iowa, 14. 39.
2. The English General Turnpike Act. 3 Ceo. IV. c. 26, enacts by section 32 'that no toll shall be demanded or taken on any turnpike road for any horse, beast, or other cattle, or carriage employed in carrying or conveying, having been employed only in carrying or conveying on the same day any hay, straw, fodder for cattle, and corn in the straw which has grown or arisen on land or ground in the occupation of the owner of any such hay, straw, fodder, or corn in the straw, potatoes or other agricultural produce, and which has not been bought, sold, or disposed of, nor is going to be sold or disposed of." A horse and cart passed through a toll-gate carrying