Purvis v. Coleman & Stetson. mind not only the fact of the safe being provided, but the reasons of such provision, and the important fact that if the guest did not avail himself of this place of safety for his money, in case of its loss, he could have no claim upon the proprietor of the hotel. The actual notice, therefore, given in this case, was far more satisfactory and ample than the constructive one required by the statute; and the question is, whether the defendants were protected by the act, in giving this notice and omitting to post that prescribed by the statute? There can be no controversy, that an actual notice is far more certain to bring knowledge of a fact to a party than constructive notice. We certainly must be permitted to look at the object of the legis lature in passing this act, and in making the provision as to notice which it contains. It was certainly to limit the liability of hotel keepers and to provide means by which they might restrict it. It was also the object of the legislature to provide for the security of the guest, and not to deprive him of the rights secured to him by the common law without special notice of the provisions of this act. It must have been seen by the framers of the act, that it would have been a difficult matter in a large hotel, receiving three or four hundred guests daily, to give personal notice to each guest of the requirements of this act, and to preserve evidence of such notice. The legislature, therefore, in addition to the knowledge which every man is presumed to have of the law, thought proper to provide in this particular case, that the putting of a notice in a conspicuous place in the room occupied by the guest, stating the fact that a safe was provided in which his money might be deposited, should be prima facie evidence of notice to him of the act. The mode and manner of giving the notice was, therefore, clearly for the benefit of the hotel keeper. It is easily seen that the chances of its attracting the attention of the guests were small; and even if it did, and stated only what the act requires, it would fail to inform him of the advantage secured by the act, and the consequence which would follow in case he did not avail himself of the use of the safe. We think, therefore, the actual notice given in this case Purvis v. Coleman & Stetson. contained more full information than the statutory notice, and that the object and purpose of the act have been more than complied with. We do not see that the precise mode of giving the notice specified in the act, and in the precise form prescribed by it, are essential to the protection of the defendants. We must look at the substance of things, and not be led away by forms. Under our recording acts, the recording of a deed or mortgage is notice to all subsequent purchasers or incumbrances, but no principle is more familiar than that actual notice of a deed or mortgage unrecorded is quite as effective and far more satisfactory than record notice. One is constructive, the other actual. Previous to 1844, in proceedings to foreclose mortgages by advertisement, the notice of sale was required to be given by publication in a newspaper printed in the county, and by affixing a copy of such notice on the outer door of the court house of the county in which the lands to be sold were located. In Stanton v. Cline (1 Kern., 198), GARDINER, Ch. J., in delivering the opinion of this court, says: The publication in the newspaper and the posting on the court house door were the equivalents to a personal service. If so, it certainly follows that if personal service, on any person affected by the proceeding, had been made of the notice, it would have dis pensed with proof of the statutory notice. We think that the actual notice given in the present case, afforded all the protection to the defendants which they would have had if the statutory notice had been posted as required by the act of 1855. But we think there is another ground, equally satisfactory, upon which the judgment of the court below can be sustained. The jury have found as a fact in this case, that the plaintiff was himself guilty of negligence under the circumstances in not availing himself of the notice given to him, to deposit his valuables in the safe provided by the defendants. The judge charged the jury "that if the information communicated to the plaintiff was communicated by the authority of the defendants, and was so communicated as that it was understood by the plaintiff so that he had full notice that there was a safe in the office appropriated to the safe custody of valuables, Purvis v. Coleman & Stetson. it was negligence, considering the amount of money he had, not to have intrusted it to the safe." The jury, in finding that the plaintiff was guilty of negli gence, must have found all the facts which the judge had told them were necessary to be proved to justify such a finding; and having ascertained the facts, they drew from them the exact conclusion which the judge had instructed them to draw. It follows, if it be the law that the loss of the plaintiff, having been caused by his own negligence, is a bar to his recovery, that in the present case such negligence having been established as a fact, he cannot recover. It is said in Calye's case (8 Rep., 33), that if the innkeeper require his guest that he will put his goods in such a chamber under lock and key and then he will warrant them, otherwise not, and the guest lets them lie in an outer court, where they are taken away, the innkeeper shall not be charged, for the fault is in the guest. In Richmond v. Smith (8 Barn. & Cress., 10.) Lord TENTERDEN placed the liability of the innkeeper, upon the common law rule, that where a traveler brings goods to an inn the landlord is responsible for them. And he says, "if it had been intended by the defendant not to be responsi ble unless his guests chose to have their goods placed in their bedrooms or some other place selected by him, he should have said so." The Chief Justice deems the situation of the landlord precisely analogous to that of a carrier. Bayley, J., said that "an innkeeper's liability very closely resembles that of a carrier. He is prima facie liable for any loss not occasioned by the act of God, or the king's enemies, although he may be exonerated when the guest chooses to have the goods under his own care." These cases are cited with approbation by NELSON, Ch. J., in Piper v. Manny (21 Wend., 284). Applying these principles to the facts of the present case, where it is apparent that the defendants wished to have the plaintiff's money put in a place of safety, which he refused to permit, but chose to have it under his own care, the defendants are exonerated, and the plaintiff must suffer the consequences of his own folly. Purvis v. Coleman & Stetson. The ground of the defendants' liability has always been likened to that of a common carrier. The rules of law applicable to such a condition of parties have always been maintained with firmness by the courts, and certainly by those of this State. (Dorr v. The New Jersey Steam Navigation Company, 1 Kern., 485.) Yet it is also the well settled law of this State, that if the plaintiff's negligence has caused or contributed to the loss or injury, an action against the carrier cannot be maintained. (Tonawanda Railroad Company v. Munger, 5 Denio, 255; S. C., 4 Comst., 349; Shepherd v. Hees, 12 Johns., 434; Bush v. Brainerd, 1 Cowen, 78; Brownell v. Flagler, 5 Hill, 282; Cook v. Champlain Transportation Company, 1 Denio, 99; Haring v. New York and Erie Railroad Company, 13 Barb., 9.) It' being an established fact in this case that the plaintiff was guilty of negligence in not availing himself of the place of safety provided by the defendants for the safe keeping of his money, it follows that he cannot maintain this action. The judgment of the Superior Court should therefore be affirmed. DENIO, SELDEN, BACON and WRIGHT, Js., concurred on both the grounds stated by DAVIES, J. COMSTOCK, Ch. J., CLERKE and WELLES, Js., did not agree that a verbal notice could be substituted for the posting of a written or printed one as required by the statute, but concurred on the ground that the plaintiff's negligence discharged the defendants indepen dently of the statute. Judgment affirmed. 21 118 110 593 21 118 129 260 Hammond v. Zehner. HAMMOND V. ZEHNER. The continued user, for more than twenty years, of an easement injurious to the land of another, e. g., overflowing his land with water, authorizes the presumption of a grant. It is for the party submitting to the user in such a case, to show that it was by license or permission, and not for the party exercising it to prove an express claim of right in order to characterize the ustras adverse. APPEAL from the Supreme Court. Action to recover damages for flowing lands of the plaintiff, by means of a dam erected by the defendant across the Canaseraga creek, in the county of Livingston. The defendant set up in his answer that the creek was a public highway, and that by an act of the LegisIature, passed April 11th, 1820, one Isaac Havens was authorized to construct a dam across the creek, not to exceed three feet high, and that Havens accordingly constructed the dam complained of, which has been ever since continued; and that Havens, on the 5th July, 1831, being the owner in fee of the land on which the dam was erected, conveyed to the defendant, in fee, a grist mill, which was supplied with water by means of the dam, and its appurtenances, and leased him the land on which the dam and the race leading therefrom to the grist mill were constructed. On the trial the defendant gave evidence tending to prove, in addition to the above mentioned facts, that the dam had been maintained and kept from the year 1826 to the commencement of the action in 1851, and that its effect during all that time was to flow the plaintiff's land, and render it unfit for cultivation. The plaintiff furnished no proof that the use of the dam, so far as his lands were affected by it, was by his permission or favor, or was in subordination to him; neither did the defendant give any other proof of adverse possession than what is afforded by the uninterrupted use of the dam for more than twenty years. The counsel for the plaintiff, when the defendant's counsel offered to prove the facts above stated, objected, on the grounds |